Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd

Coordinated Construction Co Pty Ltd (the applicant) sought judicial review of a determination made by an adjudicator under the *Building and Construction Industry Security of Payment Act 2004* (ACT) (the Act). The adjudicator had allowed a claim for "delay damages" made by Climatech (Canberra) Pty Ltd (the respondent) in a payment claim. The applicant argued that these delay damages were not recoverable under the Act.

The primary legal issue before the Court of Appeal of the Supreme Court of the Australian Capital Territory was whether "delay damages" as defined in the parties' building contract constituted a claim for "construction work" or "related goods and services" within the meaning of the Act, thereby rendering them amenable to an adjudication claim. The court also considered whether the adjudicator had erred in law by including such damages in their determination.

The court reasoned that the Act is designed to facilitate cash flow within the building and construction industry by providing a statutory regime for progress payments. It held that the contractual entitlement to delay damages arose directly from the respondent's performance of its obligations under the contract, specifically its entitlement to be paid for work done and for losses incurred due to delays for which the applicant was responsible. Therefore, these damages were sufficiently connected to the provision of construction work and related goods and services to fall within the scope of the Act. The court distinguished between damages for breach of contract and a contractual entitlement to payment for losses arising from delays, finding the latter to be within the ambit of the Act.

The appeal was dismissed, and the applicant was ordered to pay the respondent's costs.