Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Iskra v MMIR Pty Limited [2019] NSWCA 126 Hearing dates: 20 May 2019 Decision date: 30 May 2019 Before: Bathurst CJ at [1]
Gleeson JA at [2]
Payne JA at [55]Decision: (1) Allow the appeal.
(2) Vacate the stay order made by the Court on 27 February 2019.
(3) Set aside orders 1, 2, 3 and 4 made by the primary judge on 29 January 2019 and, in place, order:
(a) Dismiss the summons filed on 21 November 2018.
(b) Plaintiff to pay the first defendant’s costs of the proceedings.
(c) That the sum of $138,135.59 paid into court by MMIR Pty Limited on 30 November 2018, together with any interest accrued thereon, be paid out to Ganni John Iskra forthwith.
(4) The first respondent to pay the appellant’s costs of the appeal.Catchwords: BUILDING AND CONSTRUCTION – adjudication of payment claim – review of adjudicator’s decision – whether adjudicator simply allowed claim in full in default of any valid submission against it – whether adjudicator engaged in process of evaluation – no requirement for legally correct language – fine-tooth comb approach not appropriate – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 9, 10, 22(1), 22(2), 22(3)
ADMINISTRATIVE LAW – judicial review – whether adjudicator exercised statutory function to determine value of construction work – where adjudication may not be set aside for error of fact or law – jurisdictional error – no requirement for legally correct language – determination not to be examined with fine-tooth combLegislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 9, 10, 13, 14, 17, 20, 22
Uniform Civil Procedure Rules 2005 (NSW), r 42.1Cases Cited: Azriel v NSW Land & Housing Corporation (2006) 67 NSWLR 256; [2006] NSWCA 372
Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
Cockram Construction Ltd v Fulton Hogan Construction Pty Ltd [2018] NSWCA 107
Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385; [2005] NSWCA 228
Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWCA 276
Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780; [2018] HCA 34
Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339
Krahe v Manfate Pty Ltd [2016] NSWCA 363
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Pacific General Securities Ltd v Soliman & Sons Pty [2006] NSWSC 13; Ltd (2006) 196 FLR 388
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248; [2018] HCA 4
Weal v Bathurst City Council [2000] NSWCA 88; (2000) 11 LGERA 181Category: Principal judgment Parties: Ganni John Iskra (Appellant)
MMIR Pty Limited (First Respondent)
Callum Campbell (Second Respondent)Representation: Counsel:
F Hicks SC / M Auld (Appellant)
E A…
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- AGLC
- Iskra v MMIR Pty Ltd [2019] NSWCA 126
- Case
- [2019] NSWCA 126
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the adjudicator had merely allowed the payment claim in default due to the absence of a valid response, or whether the adjudicator had engaged in a process of evaluating the claim. The court also considered whether the adjudicator's decision could be set aside for jurisdictional error, and whether the *Building and Construction Industry Security of Payment Act 1999* (NSW) required the adjudicator to use legally correct language or subjected their determination to a "fine-tooth comb" examination.
The Court of Appeal held that an adjudicator is not required to use legally correct language and that their determination should not be subjected to a "fine-tooth comb" approach. The court found that the adjudicator had exercised their statutory function to determine the value of the construction work, even in the absence of a valid payment response. The court reasoned that the adjudicator's task was to determine the amount that was, in their opinion, due and payable, and that this process did not necessitate a detailed legal analysis of the claim when no opposing submissions were made. The court distinguished between a jurisdictional error and an error of fact or law, noting that the latter would not ordinarily be a ground for setting aside an adjudication.
The Court of Appeal allowed the appeal, vacated a stay order, and set aside the orders made by the primary judge. In their place, the court ordered that the summons filed by MMIR Pty Ltd be dismissed, that MMIR Pty Ltd pay the costs of the proceedings, and that the sum paid into court by MMIR Pty Ltd be paid out to Ganni John Iskra. The first respondent was also ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
(1) Allow the appeal.
(2) Vacate the stay order made by the Court on 27 February 2019.
(3) Set aside orders 1, 2, 3 and 4 made by the primary judge on 29 January 2019 and, in place, order:
(a) Dismiss the summons filed on 21 November 2018.
(b) Plaintiff to pay the first defendant’s costs of the proceedings.
(c) That the sum of $138,135.59 paid into court by MMIR Pty Limited on 30 November 2018, together with any interest accrued thereon, be paid out to Ganni John Iskra forthwith.
(4) The first respondent to pay the appellant’s costs of the appeal.
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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