Forte Sydney Carlingford Pty Ltd v Li

Forte Sydney Carlingford Pty Ltd and another sought an interlocutory injunction against ABCDRS and another to prevent them from referring the second defendant's adjudication application to an adjudicator, and to prevent the second defendant from resubmitting its adjudication application. The matter was heard in the Federal Court of Australia. The primary legal issue was whether the previous adjudicator's decision that they lacked jurisdiction was a nullity by reason of jurisdictional error, and whether the claimant could ignore this decision. Another issue was whether resubmitting the claim to a new adjudicator constituted an abuse of the adjudication processes of the Act.

The court found that the previous adjudicator's decision that they lacked jurisdiction was not a nullity, and the claimant could not ignore it. However, the court held that resubmitting the claim to a new adjudicator would constitute an abuse of the adjudication processes of the Act. The court considered that the Owner's financial position showed negative net assets of $165,841, and it was unlikely to be able to satisfy any liability under its undertaking as to damages. The development was close to completion, and continuing work was apparently being undertaken by the Owner. It was not at all clear what damages the Developer might suffer as a consequence of the injunctive relief, and it had not identified any. If the court required the Developer to secure its undertaking as to damages, it was not likely to be able to do so at this stage.

Accordingly, the court granted the relief sought by the applicants. The court restrained ABCDRS from referring the Developer's adjudication application to an adjudicator and restrained the Developer from resubmitting its adjudication application to ABCDRS or another authorised nominating authority. The costs of the interlocutory application were reserved. The orders were to operate until the final determination of the proceeding or further order.