Lanskey v Noxequin - [2005] NSWSC 963

CITATION:
Lanskey v Noxequin [2005] NSWSC 963

HEARING DATE(S): 22/09/2005

JUDGMENT DATE :

3 November 2005

JURISDICTION:
Technology & Construction List

JUDGMENT OF:
Associate Justice Macready at 1

CATCHWORDS:
Building and Construction. Determination under the Building & Construction Industry Security of Payment Act 1999. Failure of Adjudicator to consider submissions of plaintiff. Adjudication determining part of the matter on a basis not presented by the parties for determination. Adjudicator's failure to engage in a bona fide exercise of power and to accord the parties natural justice. Determination declared void.

PARTIES:
Lanskey Constructions Pty Ltd v Noxequin Pty Limited (In Liquidation)

FILE NUMBER(S):
SC 55052 of 2005

COUNSEL:
Mr M. Rudge & Mr D. Robertson for plaintiff
Mr S. Jacobs for 2nd and 3rd defendants

SOLICITORS:
Gadens Lawyers
Philip Davenport

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

Associate Justice Macready

Thursday 3 November 2005

55052 of 2005 LANSKEY CONSTRUCTIONS PTY LIMITED v NOXEQUIN PTY LIMITED (IN LIQUIDATION) T/AS FYNA FORMWORK, ANTHONY VEGHELYI AND MEDIATE TODAY T/AS ADJUDICATE TODAY

JUDGMENT

1 HIS HONOUR: The plaintiff is a builder who was engaged in the construction of a project known as Northgate Apartments in Wollongong. The first defendant was a sub-contractor to the plaintiff engaged to do the formwork. The sub-contract was entered into in March 2003. The second defendant, Mr Anthony Veghelyi, was the Adjudicator who carried out an Adjudication under the Act and the third defendant, Mediate Today, was the body, which appointed him. The second and third defendants have taken no part in the proceedings and submit to any orders except orders as to costs. A Judge of the Court has referred the proceedings to me for hearing.

2 The present dispute between the parties arises out of a payment claim made by the defendant against the plaintiff on the 4 April 2005. The payment claim sought a final payment and release of retention monies totalling $145,849.40 inclusive of GST. This was responded to by a very detailed payment schedule from the plaintiff dated 15 April 2005. The plaintiff’s payment schedule rejected the defendant’s claims and rather than any monies being owing by it to the defendant claimed that the defendant owed it an amount of $21,481.92 inclusive of GST.

3 The defendant lodged an Adjudication Application and the plaintiff lodged its Adjudication Response. Both were detailed documents. On 17 June 2005 the Adjudicator issued his determination dated 27 May 2005. He found that the plaintiff was obliged to pay the first defendant the amount of its claim, which inclusive of GST was $160,434.34.

The plaintiff’s claims

4 The plaintiff seeks orders declaring that the determination is void having regard to the Adjudicator’s treatment of:

5 The plaintiff submitted that in respect of both of…

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 Lanskey v Noxequin

Details

AGLC: Lanskey v Noxequin [2005] NSWSC 963
Case: [2005] NSWSC 963
Decision Date: 3 November 2005

CaseChat Overview and Summary

In the case of Lanskey v Noxequin, the dispute arose from a building and construction contract, specifically concerning a determination under the Building and Construction Industry Security of Payment Act 1999. The plaintiff, Lanskey, sought to enforce an adjudicator's determination, which had awarded a sum of money to the defendant, Noxequin. The plaintiff argued that the adjudicator failed to consider their submissions and determined part of the matter on a basis not presented by the parties for determination. Additionally, it was contended that the adjudicator did not engage in a bona fide exercise of power and did not accord the parties natural justice.

The court had to decide whether the adjudicator's determination was valid, considering the failure to consider submissions, the determination of a matter not presented by the parties, and the adjudicator's engagement in a bona fide exercise of power and adherence to natural justice principles. The court noted that the adjudicator's failure to consider the plaintiff's submissions meant the determination was not made on the full scope of the dispute as presented by the parties. Furthermore, the court found that the adjudicator determined part of the matter on a basis not presented by the parties, leading to a determination that was not in accordance with the contract. The court also concluded that the adjudicator did not engage in a bona fide exercise of power and did not accord natural justice, as the plaintiff was not given an opportunity to respond to the basis on which the determination was made.

The court declared the adjudicator's determination void due to the aforementioned reasons. The court found that the adjudicator did not properly exercise their power and failed to adhere to natural justice principles, leading to an invalid determination. The determination was set aside, and no payment was ordered to be made by the plaintiff to the defendant. The case underscores the importance of adjudicators thoroughly considering all submissions, determining matters on the basis presented by the parties, and engaging in a bona fide exercise of power while according natural justice.

Orders