Chase Oyster Bar v Hamo Industries

The plaintiff, Chase Oyster Bar, brought an application to the Supreme Court of New South Wales seeking judicial review of an adjudicator’s determination in a dispute between the parties regarding a building and engineering contract. The core issue was whether it was permissible for the adjudicator to conclude that the contract was wholly in writing or that certain terms were written, and if the first defendant, Hamo Industries, had complied with the statutory time limits for serving a notice of intention to apply for adjudication of a payment claim.

The legal issues for the court to determine included whether the adjudicator had erred in finding that the notice of intention to apply for adjudication was served within the statutory time limit, and if it was open to the adjudicator to conclude that the first defendant’s notice had been served in accordance with the statutory requirements. These issues hinged on the interpretation of statutory provisions under the Building and Construction Industry Security of Payment Act 1999 (NSW) and the Interpretation Act 1987 (NSW).

The court considered the dates of service of the payment claim, the due date for payment, and the statutory deadline for giving notice of intention to seek adjudication. It found that the adjudicator’s conclusion that the notice was served within the required time limit was open to challenge and could constitute a jurisdictional error. The court held that the matter involved a preliminary question for determination and referred the issue to the Court of Appeal for its determination, as per section 51(5) of the Supreme Court Act 1970 (NSW).