Ian Street Developer Pty Ltd v Arrow International Pty Ltd

Ian Street Developer Pty Ltd sought a declaration that a determination by an adjudicator under the Building and Construction Industry Security of Payment Act 2002 (Vic) was invalid on the grounds that it was made outside the statutory period. The defendant, Arrow International Pty Ltd, was a subcontractor to the plaintiff and had issued a payment claim under the Act. The court was required to determine whether the Act applied to the defendant, whether the adjudicator's determination was invalid for being made outside the statutory period, and whether the payment claim could include the value of work performed before an earlier reference date.

The court found that the defendant was 'in the business of building residences' for the purposes of section 7(2)(b) of the Act, and thus the Act applied to the defendant. The court also held that the maximum extension of time permitted under section 22(4) of the Act is a further 5 days, not 15 days as argued by the defendant. Despite the adjudicator's determination being made outside the statutory period, the court found that this did not render the determination invalid as the requirements of section 22(4) of the Act were not jurisdictional. Finally, the court held that a person entitled to a progress payment, which is calculated by reference to a reference date under section 9 of the Act, may include the value of work performed before the previous reference date.

The court's decision affirmed the validity of the adjudicator's determination and upheld the plaintiff's entitlement to payment for work performed before the previous reference date. The defendant's application for a declaration that the adjudicator's determination was invalid was dismissed with costs.