Supreme Court
New South Wales
Medium Neutral Citation: Castle Constructions Pty Ltd v Ghossayn Group Pty Ltd [2017] NSWSC 1317 Hearing dates: 18-19 September 2017 Decision date: 29 September 2017 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Adjudicator’s determination to be quashed
Catchwords: BUILDING AND CONSTRUCTION – challenge to jurisdiction of adjudicator to make determination under the Building and Construction Industry Security of Payment Act 1999 – whether there was an available reference date to support the payment claim the subject of the determination – whether defendant was a head contractor as defined in the Act and thus obliged to cause its payment claim to be accompanied by a supporting statement – whether adjudicator’s acceptance was served on plaintiff when deposited into its letterbox by a neighbour into whose letterbox Australia Post had wrongly deposited the adjudicator’s acceptance Legislation Cited: Building and Construction Industry Payments Act 2004 (QLD)
Building and Construction Industry Security of Payment Act 1999 (NSW)
Evidence Act 1995 (NSW)Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 801
Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259
Hutchinson Pty Ltd v Glavcom Pty Ltd [2016] NSWSC 126
Kitchen Xchange Pty Ltd v Formacon Building Services Pty Ltd [2014] NSWSC 1602
Kyle Bay Removals Pty Ltd v Dynabuild Project Services Pty Ltd [2016] NSWSC 334
Lean Field Developments Pty Ltd v E & I Global Solutions (Aust) Pty Ltd [2014] QSC 293
Millman v Rochester Ry Co 3 App Div 109; 39 NYS 274 (1896)
Mt Lewis Estate Pty Ltd v Metricon Homes Pty Ltd [2017] NSWSC 1121
Patrick Stevedores Operations No. 2 Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2014] NSWSC 1413
Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd [2016] HCA 52
Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2008] NSWSC 399Category: Principal judgment Parties: Castle Constructions Pty Ltd (First Plaintiff)
Castlenorth Pty Ltd (Second Plaintiff)
Ghossayn Group Pty Ltd (First Defendant)
Michael Turner (Second Defendant)
Adjudicate Today Pty Ltd (Third Defendant)Representation: Counsel:
Solicitors:
F P Hicks with A J Carr (Plaintiffs)
M Christie SC with D Hume (First Defendant)
McLachlan Thorpe Partners (Plaintiffs)
CCS Legal Pty Limited (First Defendant)
King Lawyers Australia (Second and Third Defendants)
File Number(s): SC 2016/386129
Judgment
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On 16 December 2016, an adjudicator appointed under s 19 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the “SoP Act”) made a determination pursuant to s 22 of that Act that the first plaintiff, Castle Constructions Pty Ltd, pay the first defendant, Ghossayn Group Pty Ltd, $134,107.22.
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The adjudicator’s determination was in respect of a payment claim made by Ghossayn Group on Castle Constructions (pursuant to s 13 of the SoP Act) on 30 September 2016.
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Castle Constructions and its…
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- Case
- [2017] NSWSC 1317
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to address included the interpretation of the statutory framework for adjudication, specifically the definition of "reference date" under the Act and the obligations of a "head contractor." Additionally, the court considered whether the adjudicator's acceptance was properly served on Castle Constructions. The dispute over the service of the adjudicator's acceptance was particularly contentious, with Castle Constructions arguing that the adjudicator's acceptance was not validly served because it was mistakenly delivered to a neighbour's letterbox by Australia Post.
The court found that there was indeed an available reference date to support the payment claim, thereby upholding the adjudicator's jurisdiction. It was also determined that Ghossayn Group was a head contractor and was therefore required to provide a supporting statement with the payment claim. Regarding the service of the adjudicator's acceptance, the court ruled that the deposit of the acceptance into Castle Constructions' letterbox by a neighbour constituted valid service, as it was a reasonable action under the circumstances. This ruling affirmed the enforceability of the adjudicator's determination.
The court ordered that the adjudicator's determination was binding, and Castle Constructions was required to make the payment as determined. The court also directed that Ghossayn Group was to provide the supporting statement as required by the Act.
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