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Kumar v Frankies Cranes Pty Ltd

Kumar v Frankies Cranes Pty Ltd

Case [2025] NSWSC 1264 28 October 2025

Adjudication

Contract Formation

Limitation Periods

Admissibility of Evidence

Construction Law

Commercial Law

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Supreme Court

New South Wales

Medium Neutral Citation: Kumar v Frankies Cranes Pty Ltd [2025] NSWSC 1264
Hearing dates: 21 October 2025
Date of orders: 28 October 2025
Decision date: 28 October 2025
Jurisdiction: Equity - Technology and Construction List
Before: Peden J
Decision:
At [36]

Catchwords:
BUILDING AND CONSTRUCTION — adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) — whether adjudicator’s finding of existence of construction contract reviewable — whether payment claim validly served — whether email address “specified” for service of documents — determination set aside

Legislation Cited:
Building and Construction Industry Security of Payment Act 1999 (NSW)

Cases Cited:
BCFK Holdings Pty Ltd v Rork Projects Pty Ltd [2022] NSWSC 1706
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421
Chase Oyster Bar v Hamo Industries (2010) 78 NSWLR 393
Cubillo v Commonwealth (No 2) (2000) 103 FCR 1
Falgat Constructions Pty Ltd v Equity Australia Corporation Ltd [2006] NSWCA 259
Fifty Property Investments Pty Ltd v Barry O’Mara [2006] NSWSC 428
Jones v Dunkel (1959) 101 CLR 298
Long Spring Pty Ltd v RD Beechworth Pty Ltd [2025] NSWSC 437
Nefiko Pty Ltd v Statewide Form Pty Ltd (No 2) [2014] NSWSC 840
QC Communications NSW Pty Ltd v CivComm Pty Ltd [2016] NSWSC 1095
Ratcliffe v Horizon Glass & Aluminium Pty Ltd [2023] NSWSC 196
Rewais v BPB Earthmoving Pty Ltd [2025] NSWCA 103
Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340

Category: Principal judgment
Parties: Rakesh Kumar (Plaintiff)
Frankies Cranes Pty Ltd (First Defendant)
Lou Stojanovski (Second Defendant)
Representation:
Counsel:
D Weinberger SC (Plaintiff)
M Sahade (First Defendant)
Solicitors:
Madison Marcus (Plaintiff)
Olivieri Lawyers (First Defendant)
Lauderdale Law (Second Defendant, submitting appearance)

File Number(s): 2025/00332339
Publication restriction: Nil

JUDGMENT

Rakesh Kumar seeks to set aside an adjudication determination made under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) in favour of Frankies Cranes Pty Limited for $142,120, on the basis it is void for jurisdictional error. The adjudicator’s certificate was registered as a judgment in the NSW District Court.
I accept Mr Kumar’s submissions that the determination is void because the adjudicator did not have jurisdiction: Mr Kumar did not agree to a s 7 SOPA construction contract with Frankies Cranes, and the payment claim and s 17(2) SOPA notice were not served on Mr Kumar before the adjudication application was lodged.

Was there a construction contract?

Can the Court review the adjudicator’s decision there was a construction contract?

An essential prerequisite to the adjudicator’s jurisdiction is the existence of a construction contract in accordance with s 7 SOPA (and as defined in s 4 SOPA): Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 at 441 [53] (Hodgson JA) (Brodyn). Whether such a contract exists is a jurisdictional fact which may be the subject of review in this Court: Ratcliffe v Horizon Glass & Aluminium Pty Ltd [2023] NSWSC 196 at [7] (Rees…

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.

Continue reading Kumar v Frankies Cranes Pty Ltd

Details

AGLC: Kumar v Frankies Cranes Pty Ltd [2025] NSWSC 1264
Case: [2025] NSWSC 1264
Decision Date: 28 October 2025

CaseChat Overview and Summary

Kumar and Frankies Cranes Pty Ltd were parties in a dispute regarding an adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW). Kumar, a contractor, had submitted a payment claim to Frankies Cranes, the principal, and subsequently engaged in adjudication proceedings. The central issues in the case were whether the existence of a construction contract was reviewable by the adjudicator, whether the payment claim was validly served, and whether the email address provided by Frankies Cranes was "specified" for the service of documents under the Act. The case was heard in the Supreme Court of New South Wales.

The legal questions addressed by the court included the scope of review available for an adjudicator's decision on the existence of a construction contract, the requirements for the valid service of a payment claim, and the interpretation of the term "specified" in the context of the Act's provisions regarding the service of documents. The court had to consider whether the adjudicator had correctly applied the law and whether the procedures followed were in accordance with the statutory framework.

The court found that the adjudicator's determination on the existence of the construction contract was not reviewable as it fell within the exclusive jurisdiction of the adjudicator. However, the court held that the payment claim was not validly served because it was not delivered to the address "specified" by Frankies Cranes. The court held that the email address provided by Frankies Cranes was not sufficiently specific for the purposes of service under the Act, as it did not explicitly state that it was to be used for legal documents. Consequently, the court set aside the adjudicator's determination, finding that the payment claim was not validly served, and ordered that the adjudication be re-commenced.

In summary, the Supreme Court of New South Wales set aside the adjudicator's determination due to the invalid service of the payment claim. The court clarified the legal standards for the service of documents under the Building and Construction Industry Security of Payment Act 1999 (NSW) and directed that the adjudication process be re-commenced.

Orders