Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Demex Pty Ltd v McNab Building Services Pty Ltd [2023] NSWCA 261 Hearing dates: 12 May 2023 Date of orders: 2 November 2023 Decision date: 02 November 2023 Before: Mitchelmore JA at [1];
Kirk JA at [2];
Adamson JA at [105]Decision: (1) Appeal allowed with costs.
(2) Set aside orders 1, 2 and 4 made by the Supreme Court on 25 October 2022 and in lieu thereof order as follows:
(a) Prayers 4-8 of the summons are dismissed.
(b) Plaintiff to pay the defendants’ costs.
Catchwords: ADMINISTRATIVE LAW — Procedural fairness — Whether the adjudicator afforded parties procedural fairness under the Building and Construction Industry Security of Payment Act 1999 (NSW) — Where necessary provision of procedural fairness attenuated in the context of the statute — Need for a substantial departure from the general requirements of procedural fairness
ADMINISTRATIVE LAW — Procedural fairness — Where conversion factor from weight to volume that was applied was not explained in terms by claimant — Where conversion factor was readily calculable — Where party is aware that some conversion factor was applied — Whether reliance made on contractual document which had not been foreshadowed was a denial of procedural fairness — Whether reliance on industry standards not provided by either party was a denial of procedural fairness — No substantial denial of procedural fairness constituting jurisdictional error
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3(4), 13, 14, 17(3)(c), 18, 20, 21(2), 21(3), 21(4), 22(2), 22(3)(b), 32
Building and Construction Industry Security of Payment Regulation 2020 (NSW), cl 19
Cases Cited: Ausenco Operations Pty Ltd v Ferretti International Ottoway Pty Ltd [2020] SASC 46
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
Broken Hill Cobalt Project Pty Ltd v Lord (2022) 254 LGERA 274; [2022] NSWCA 271
Brolton Group Pty Ltd v Hanson Construction Materials Pty Ltd [2020] NSWCA 63
BSA Advanced Property Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd (2022) 108 NSWLR 350; [2022] NSWCA 82
Cardinal Project Services Pty Ltd v Hanave Pty Ltd (2011) 81 NSWLR 716; [2011] NSWCA 399
Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225; [2023] NSWCA 215
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190
Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576
Downer Construction (Aust) Pty Ltd v Energy Australia (2007) 69 NSWLR 72; [2007] NSWCA 49
Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) (2009) 26 VR 172; [2009] VSC 426
Kioa v West (1985) 159 CLR 550, [1985] HCA 81
Media Niugini Ltd (t/as EMTV) v International Management Group of America Pty Ltd [2023] NSWCA 33
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29
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- Case
- [2023] NSWCA 261
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the adjudicator had denied Demex procedural fairness by relying on a conversion factor from weight to volume that was not explicitly explained by McNab, and by relying on a contractual document and industry standards that had not been foreshadowed by either party. The court was required to consider whether these actions constituted a substantial departure from the general requirements of procedural fairness, thereby amounting to jurisdictional error.
The Court of Appeal held that while the Act does not require the full panoply of procedural fairness, a substantial departure from its requirements can constitute jurisdictional error. However, in this instance, the court found that the adjudicator's reliance on the conversion factor, which was readily calculable and of which Demex was aware, did not amount to a substantial denial of procedural fairness. Similarly, the reliance on a contractual document and industry standards, even if not explicitly foreshadowed, did not constitute a substantial denial of procedural fairness in the specific context of the Act. The court reasoned that the adjudicator's approach did not prevent Demex from presenting its case or understanding the basis of the determination to a degree that would vitiate the process.
Consequently, the appeal was allowed with costs. The orders of the Supreme Court were set aside, and in their place, the prayers for relief sought by Demex were dismissed, with Demex ordered to pay the defendants' costs.
Orders
Orders of the court
(1) Appeal allowed with costs.
(2) Set aside orders 1, 2 and 4 made by the Supreme Court on 25 October 2022 and in lieu thereof order as follows:
(a) Prayers 4-8 of the summons are dismissed.
(b) Plaintiff to pay the defendants’ costs.
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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