Cardinal Project Services Pty Ltd v Hanave Pty Ltd

In the New South Wales Court of Appeal, Cardinal Project Services Pty Ltd (the respondent) sought to recover an amount it claimed was due under a construction contract from Hanave Pty Ltd (the appellant). The dispute concerned the validity of an adjudication determination made under the *Building and Construction Industry Security of Payment Act 1999* (NSW) and the subsequent ability of the respondent to lodge a fresh adjudication application.

The primary legal issues before the Court were whether an adjudicator issuing a determination that was subsequently found to be void had, for the purposes of section 26 of the Act, failed to determine the adjudication application within the time prescribed by section 21(3). Further, the Court had to determine when the five-business-day period for lodging a new adjudication application under section 26 commenced to run: from the expiry of the time allowed for a valid determination, or from the date the purported determination was declared void.

The Court applied principles of statutory interpretation, particularly in relation to section 26 of the Act, and considered the effect of an order quashing a decision on the grounds of procedural unfairness, referencing the High Court's decision in *Minister for Immigration and Multicultural Affairs v Bhardwaj*. The Court reasoned that a void determination does not constitute a determination for the purposes of the Act, meaning the adjudicator had failed to determine the application within the statutory timeframe. Consequently, the time for lodging a new application commenced upon the expiry of the period within which a valid determination should have been made.

The appeal was dismissed with costs.