Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWCA 276 Hearing dates: 17 October 2018 Decision date: 20 November 2018 Before: Basten JA at [1];
Leeming JA at [55];
White JA at [56]Decision: (1) Dismiss the appeal from the judgment in the Equity Division given on 6 August 2018.
(2) Order that the appellant pay the respondents’ costs in this Court, in the case of the second respondent on a submitting basis.Catchwords: ADMINISTRATIVE LAW – judicial review – content of obligation to act in good faith – whether lack of good faith established by failure to “grapple with” all matters decision-maker required to consider – whether lack of good faith requires wilful blindness or conscious maladministration
BUILDING AND CONSTRUCTION – adjudication of payment claim – review of adjudicator’s decision – circumstances in which adjudicator’s decision invalid for lack of good faith – whether decision reviewable for failure to “grapple with” all matters adjudicator required to consider – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 10(1)(b), 22(2)Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 9, 10, 17, 20, 21, 22 Cases Cited: Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
Commissioner of Taxation (Cth) v Futuris Corp Ltd (2008) 237 CLR 146; [2008] HCA 32
Hii v Commissioner of Taxation (2015) 230 FCR 385; [2015] FCA 375
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780
Laing O’Rourke Australia Construction Pty Ltd v H&M Engineering and Construction Pty Ltd [2010] NSWSC 818
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; 92 ALJR 248
Roberts v Hopwood [1925] AC 578
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; 194 ALR 749
Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379
SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd [2015] VSC 631
The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; [1981] HCA 74
Timwin Construction v Façade Innovations [2005] NSWSC 548; 21 BCL 383
Transgrid v Siemens Ltd (2004) 61 NSWLR 521; [2004] NSWCA 395
Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167Texts Cited: R Creyke, M Groves, J McMillan and M Smyth, Control of Government Action (5th ed, Lexis Nexis, 2018) Category: Principal judgment Parties: Goodwin Street Developments Pty Ltd as Trustee for Jesmond Unit Trust (Appellant)
DSD Builders Pty Ltd (First Respondent)
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Details
- AGLC
- Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWCA 276
- Case
- [2018] NSWCA 276
- Decision Date
CaseChat Overview and Summary
Goodwin Street Developments Pty Ltd (the appellant) sought to appeal a judgment of the Equity Division concerning the validity of an adjudicator's decision made under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The dispute centred on whether the adjudicator had acted in good faith when determining a payment claim. DSD Builders Pty Ltd (the first respondent) and another party (the second respondent) were involved in the proceedings.
The primary legal issues before the Court of Appeal were whether the adjudicator's decision was invalid for a lack of good faith. Specifically, the court considered whether a failure to "grapple with" all matters that the adjudicator was required to consider constituted a lack of good faith, and whether such a lack of good faith required proof of wilful blindness or conscious maladministration.
The Court of Appeal affirmed the principles governing the review of adjudicator decisions for good faith. It held that a failure to consider all relevant matters required by the Act could, in certain circumstances, demonstrate a lack of good faith. However, the court clarified that this did not automatically equate to a requirement for wilful blindness or conscious maladministration. The focus remained on whether the adjudicator genuinely applied their mind to the task and the material before them, rather than on the subjective intent of the adjudicator. The court found no error in the primary judge's assessment of the facts and the application of these principles.
The appeal was dismissed, and the appellant was ordered to pay the respondents' costs.
The primary legal issues before the Court of Appeal were whether the adjudicator's decision was invalid for a lack of good faith. Specifically, the court considered whether a failure to "grapple with" all matters that the adjudicator was required to consider constituted a lack of good faith, and whether such a lack of good faith required proof of wilful blindness or conscious maladministration.
The Court of Appeal affirmed the principles governing the review of adjudicator decisions for good faith. It held that a failure to consider all relevant matters required by the Act could, in certain circumstances, demonstrate a lack of good faith. However, the court clarified that this did not automatically equate to a requirement for wilful blindness or conscious maladministration. The focus remained on whether the adjudicator genuinely applied their mind to the task and the material before them, rather than on the subjective intent of the adjudicator. The court found no error in the primary judge's assessment of the facts and the application of these principles.
The appeal was dismissed, and the appellant was ordered to pay the respondents' costs.
Orders
Orders of the court
(1) Dismiss the appeal from the judgment in the Equity Division given on 6 August 2018.
(2) Order that the appellant pay the respondents’ costs in this Court, in the case of the second respondent on a submitting basis.
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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