Emergency Services Superannuation Board v Davenport - [2004] NSWSC 697

CITATION: EMERGENCY SERVICES SUPERANNUATION BOARD v DAVENPORT & ANOR [2004] NSWSC 697

HEARING DATE(S): 21/07/2004 (judgment given 22 July 2004 and revised on 26 July 2004)

JUDGMENT DATE:
22 July 2004

JURISDICTION:
EQUITY

JUDGMENT OF: McDougall J

DECISION: (1) I continue, up until the making of final orders in these proceedings, or the further order of the Court, the orders made on 21 July 2004 and continued on 22 July 2004.; (2) I stand the proceedings over to 9.30 am on Tuesday, 27 July 2004 for the making of final orders.; (3) I give the parties leave to approach on short notice.

CATCHWORDS: BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - Whether adjudication determination should be quashed - Where alleged that adjudicator determined claim on basis explicitly disavowed by second defendant and not said to be relevant by plaintiff without giving plaintiff notice of intention to do so - Whether determination vitiated by denial of natural justice - Whether determination vitiated by adjudicator's alleged failure to consider relevant provision of contract and plaintiff's submissions thereon - s22(2)(b) - Whether payment claim compiled with s 13(2)(a) of the Act - Whether discretion to grant prerogative relief should be exrcised

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)

CASES CITED: Multiplex Construction Pty Ltd v Luikens [2003] NSWSC 1140
Musico v Davenport [2003] NSWSC 1019
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171
Stead v State Government Insurance Commission (1986)161 CLR 141
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Brodyn Pty Ltd v Davenport [2004]NSWSC 304

PARTIES :
EMERGENCY SERVICES SUPERANNUATION BOARD - Plaintiff
PHILLIP DAVENPORT - First Defendant
LIPMAN PTY LTD - Second Defendant

FILE NUMBER(S): SC 30054/04

COUNSEL: R.J. Cheney - Plaintiff
1st Defendant - Submitting Appearance
S. Goldstein - Second Defendant

SOLICITORS: Holding Redlich - Plaintiff
1st Defendant - Submitting Appearance
Cowley Hearne - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

McDOUGALL J

22 July 2004 (revised 26 July 2004)

v PHILIP DAVENPORT AND LIPMAN PTY LTD

JUDGMENT

1 HIS HONOUR: The issue in these proceedings is whether a determination made on 12 July 2004 ("the Determination") by the first defendant ("Mr Davenport") under the Building and Construction Industry Security of Payment Act 1999 (NSW) ("the Act") should be quashed.

2 The plaintiff ("ESSB") and the second defendant ("Lipman") agreed that this issue would be determined in a final hearing. The first defendant, Mr Davenport, has indicated that he is in the process of filing a submitting appearance whereby he submits save as to costs. A copy of his letter to ESSB’s solicitors informing them of that fact and enclosing a signed form of submitting appearance is exhibit PX2 in the proceedings. I am satisfied that it is appropriate to determine these proceedings on a final basis without Mr Davenport's participation.

3 ESSB submits that the Determination is vitiated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWSC 697
Decision Date: 22 July 2004

CaseChat Overview and Summary

In this case, the Emergency Services Superannuation Board sought to quash an adjudication determination made by an adjudicator under the Building and Construction Industry Security of Payment Act 1999 (NSW). The primary dispute involved the adjudicator's approach to the adjudication process and whether it adhered to the principles of natural justice and statutory compliance. The court was required to determine whether the adjudication determination should be quashed on the grounds that the adjudicator assessed the claim based on a premise not supported by the second defendant and not mentioned by the plaintiff, without providing the plaintiff with notice of this intention. Additionally, the court had to consider whether the determination was flawed due to the adjudicator's alleged failure to consider a relevant contractual provision and the plaintiff's submissions concerning it.

The court analysed the adjudicator's conduct and whether it amounted to a breach of natural justice. It examined if the adjudicator's decision to rely on a particular premise without prior notice to the plaintiff was sufficient to invalidate the determination. Furthermore, the court considered whether the adjudicator's oversight of a relevant contractual provision and the plaintiff's arguments regarding it rendered the determination flawed. The court also assessed whether the payment claim complied with section 13(2)(a) of the Act, which pertains to the content and timing of payment claims. Finally, the court deliberated on whether the discretion to grant prerogative relief should be exercised in this instance.

Ultimately, the court found that the adjudicator's failure to provide notice of the basis on which the claim would be assessed constituted a denial of natural justice, warranting the quashing of the adjudication determination. Additionally, the court determined that the adjudicator's oversight of a relevant contractual provision and the plaintiff's submissions on this matter further vitiated the determination. The court concluded that the discretion to grant prerogative relief should be exercised in this case, leading to the quashing of the adjudication determination. Consequently, the Emergency Services Superannuation Board's claim was successful, and the determination was set aside.

Orders