Icon Co (NSW) Pty Ltd v AMA Glass Facades Pty Ltd

The dispute between Icon Co (NSW) Pty Ltd and AMA Glass Facades Pty Ltd was brought before the Supreme Court of New South Wales. The case revolved around a payment dispute within the building and construction sector, specifically under the Security of Payment Act 2009 (NSW). Icon, the principal contractor, had engaged AMA, a subcontractor, for work on a construction project. A payment dispute arose when Icon issued a pay-less notice to AMA, reducing the payment amount. AMA subsequently submitted a payment claim to an adjudicator, who issued a determination in AMA's favour. Icon, dissatisfied, engaged another adjudicator who reached a different conclusion, yet AMA did not challenge this second determination. Instead, AMA resubmitted the payment claim, prompting a third adjudicator who ruled in AMA's favour once more. Icon argued that the third determination was void as the construction issue had been decided by the second, unchallenged, determination.

The court was tasked with determining whether the third adjudication was valid and if Icon's argument about the second determination's effect had merit. Specifically, the court needed to address whether AMA's failure to challenge the second determination meant that the issue of the proper construction of the contract had been determined. Additionally, the court had to consider whether AMA's attempt to challenge the second determination through a cross-summons, after the third adjudication had been made, was permissible.

The court held that the third adjudicator was entitled to make their determination without being bound by the findings of the second adjudicator. The court reasoned that an unchallenged determination does not constitute a binding precedent in subsequent adjudications. Furthermore, the court found that AMA's belated attempt to challenge the second determination via a cross-summons was not an appropriate method to question the validity of the third determination. The court emphasised the importance of timely and direct challenges to adjudication determinations. Consequently, the court upheld the validity of the third determination, ruling that Icon was required to pay AMA the full amount claimed.

In its judgment, the court dismissed Icon's challenge to the third determination and ordered Icon to pay AMA the amount determined by the third adjudicator, including interest and costs. The court's decision underscored the necessity for prompt and direct challenges to adjudication determinations and clarified the independence of successive adjudications under the Security of Payment Act.