CITATION: Cardinal Project Services v Hanave [2010] NSWSC 1367 HEARING DATE(S): 22 November 2010 and 23 November 2010 JURISDICTION: Equity Division JUDGMENT OF: McDougall J at 1 EX TEMPORE JUDGMENT DATE: 23 November 2010 DECISION: Determination declared void and quashed. Summons otherwise dismissed with costs. CATCHWORDS: BUILDING AND ENGINEERING CONTRACTS – adjudication – determinations – validity – where prior adjudication made on same payment claim – where prior determination declared void – whether plaintiff could make second adjudication application – whether second application made within time allowed by s 26(3) – whether second determination void – judicial review – Building and Construction Industry Security of Payment Act 1999 (NSW) s 26. - STATUTORY INTERPRETATION – meaning of s 26(1)(b) and s 26(3) – giving effect to literal meaning – when time limit for making fresh application runs – considerations of inconvenient consequences – Building and Construction Industry Security of Payment Act 1999 (NSW) s 26. LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)
Supreme Court Act 1970 (NSW)CATEGORY: Procedural and other rulings CASES CITED: Brodyn Pty Limited v Davenport (2004) 61 NSWLR 421
Chase Oyster Bar v Hamo Industries [2010] NSWCA 190
Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69
Multiplex Constructions Pty Limited v Luikens [2003] NSWSC 1140
Watpac Constructions v Austin Corp [2010] NSWSC 168PARTIES: Cardinal Project Services Pty Ltd (Plaintiff)
Hanave Pty Limited (First Defendant)
David Campbell-Williams (Second Defendant)FILE NUMBER(S): SC 2010/304657 COUNSEL: HJA Neal (Plaintiff)
G J McVay (First Defendant)SOLICITORS: Baron + Associates (Plaintiff)
Gilbert Mane Solicitors (First Defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST
McDOUGALL J
23 November 2010 (ex tempore – revised 24 November 2010)
2010/304657 CARDINAL PROJECT SERVICES PTY LIMITED v HANAVE PTY LIMITED
JUDGMENT
1 HIS HONOUR: On 21 April 2008, the first defendant (Hanave) and the plaintiff (Cardinal) made a "minor works contract" under which Cardinal undertook to perform excavation and shoring works for Hanave at a site in Surry Hills. There is no doubt that the work to be performed by Cardinal was, or included, construction work for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) and, hence, that the contract was a construction contract.
2 The ultimate question for decision is the validity of a determination made by the second defendant (the second adjudicator) on 3 September 2010, which was corrected under s 22(5) of the Act on 8 September 2010 (the second determination). That was the second determination (or purported determination) on the same payment claim.
The issues
3 The real issues in dispute appear to be the following:
(1) in circumstances where there had been a prior adjudication on the same payment claim, and where the resulting determination (the first determination) had been declared to be void, was it open to Cardinal to make the adjudication application (the second application) that was the subject of the second…
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- Case
- [2010] NSWSC 1367
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the plaintiff was permitted to make a second adjudication application after a prior determination was declared void, whether the second application was made within the time allowed by section 26(3) of the Act, and whether the second determination was void. The court was also required to interpret sections 26(1)(b) and 26(3) of the Act, particularly in relation to the meaning of the time limit for making a fresh application and whether considerations of inconvenient consequences could override the literal meaning of the provisions.
The court held that the plaintiff was not permitted to make a second adjudication application as the time limit under section 26(3) of the Act had already expired. The court emphasised the importance of giving effect to the literal meaning of the statutory provisions, and that considerations of inconvenient consequences could not override the clear wording of the Act. The court also found that the second determination was void as it was made outside the time limit. The application for judicial review was dismissed, and the plaintiff's claim for enforcement of the adjudicator's determination was also dismissed.
The final orders of the court included dismissing the application for judicial review, declaring that the second adjudication application was invalid, and that the second determination was void. The court also dismissed the plaintiff's claim for enforcement of the adjudicator's determination.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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