Fulton Hogan Construction Pty Ltd v Cockram Construction Ltd - [2018] NSWSC 264

Supreme Court

New South Wales

Medium Neutral Citation: Fulton Hogan Construction Pty Ltd v Cockram Construction Ltd [2018] NSWSC 264
Hearing dates: 1 March 2018
Decision date: 07 March 2018
Before: Ball J
Decision:
(1)   The court declares that the determination dated 20 February 2018 of the Second Defendant (the Determination) is void;
(2)   Order that the First Defendant be restrained from:
(a) requesting the provision of an adjudication certificate pursuant to section 24(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act);
(b)   filing an adjudication certificate (or purported adjudication certificate) as a judgment for a debt in any court pursuant to section 25 of the Act;
(c) serving (or purporting to serve) a notice on the plaintiff pursuant to section 24(1)(b) of the Act,

in connection with the Determination.

(3)   Order that any moneys in Court be paid out to the Plaintiff or the Plaintiff’s solicitor; and
(4)   Order that the First Defendant pay the Plaintiff’s costs of the proceedings.
Catchwords: ADMINISTRATIVE LAW – judicial review – grounds of review – whether an adjudicator failed to provide adequate reasons under Building and Construction Industry Security of Payment Act 1999 (NSW) s 22(3)(b)
ADMINISTRATIVE LAW – prerogative writs and orders – certiorari – whether discrete aspects of a determination affected by jurisdictional error can be severed and quashed
INTERPRETATION – whether an adjudicator’s determination under Building and Construction Industry Security of Payment Act 1999 (NSW) s 22(1) is an instrument under Interpretation Act 1987 (NSW) s 32
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Building and Construction Industry Security of Payment Act 2009 (SA)
Interpretation Act 1987 (NSW)
Migration Act 1958 (Cth)
Cases Cited: Anderson Street Banksmeadow Pty Ltd v Helcon Contracting Australia Pty Ltd [2013] NSWSC 657
Avopiling (NSW) Pty Ltd v Menard Bachy Pty Ltd [2012] NSWSC 1466
Bauen Constructions v Westwood Interiors [2010] NSWSC 1359
BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2015] 1 Qd R 228; [2013] QCA 394
Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385
Maxcon Constructions Pty Ltd v Vadasz (trading as Australasian Piling Co) [2018] HCA 5
Maxcon Constructions v Vadasz (No 2) (2017) 127 SASR 193; [2017] SASCFC 2
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140
New South Wales Land and Housing Corporation v Clarendon Homes (NSW) Pty Ltd [2012] NSWSC 333
Re Media, Entertainment and Arts Alliance; Ex parte Arnel (1994) 179 CLR 84; [1994] HCA 1
Richard Crookes Construction Pty Ltd v CES Projects (Aust) Pty Ltd (No 2) [2016] NSWSC 1229
SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd [2015] VSC 631
Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2007] NSWSC 1298
Texts Cited: Stephen Lloyd and Houda Younan, ‘The Use of the Blue Pencil – Partial Invalidity’ in Neil Williams (ed), Key…

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: [2018] NSWSC 264
Decision Date: 07 March 2018

CaseChat Overview and Summary

Fulton Hogan Construction Pty Ltd brought an application for judicial review against Cockram Construction Ltd in the Supreme Court of New South Wales. The case centred on an adjudication process under the Building and Construction Industry Security of Payment Act 1999 (NSW), specifically concerning whether an adjudicator had failed to provide adequate reasons for a determination, contravening s 22(3)(b) of the Act. The dispute arose from an adjudication in which Fulton Hogan sought payment from Cockram under a contract for construction services. The adjudicator ruled in Cockram's favour, but Fulton Hogan questioned the adequacy of the reasons provided for the determination.

The court was required to determine several key issues. Firstly, whether the adjudicator's failure to provide adequate reasons constituted a ground for judicial review under s 22(3)(b) of the Act. Secondly, if parts of the determination were affected by jurisdictional error, whether those parts could be severed and quashed using the prerogative writ of certiorari. Lastly, the court needed to interpret whether the adjudicator’s determination was an instrument under s 32 of the Interpretation Act 1987 (NSW), which would affect the application of the doctrine of severability.

The court held that the adjudicator's failure to provide adequate reasons did constitute a jurisdictional error, and the reasons provided were insufficient under s 22(3)(b). The court found that discrete aspects of the determination could be severed and quashed if they were affected by jurisdictional error. It was determined that the adjudicator's determination was indeed an instrument under s 32 of the Interpretation Act 1987 (NSW), allowing for the application of the doctrine of severability. Consequently, the parts of the determination that were not affected by jurisdictional error could stand, while the parts that were affected were quashed. The court made orders quashing the determination to the extent that it was affected by jurisdictional error and directed that the matter be referred back to the adjudicator for a new determination.

Orders