Lend Lease Building Contractors Pty Ltd t/as Sitzler Baulderstone Joint Venture v Honeywell Limited t/as Honeywell Building Solutions
[2015] NTSC 10
•9 FEBRUARY 2015
Lend Lease Building Contractors Pty Ltd t/as Sitzler Baulderstone Joint Venture v Honeywell Limited t/as Honeywell Building Solutions & Anor [2015] NTSC 10
PARTIES:Lend Lease Building Contractors Pty Ltd (ABN 56 002 625 130) (formerly Baulderstone Pty Ltd) and Sitzler Pty Ltd (ABN 17 091 273 013) trading as Sitzler Baulderstone Joint Venture
v
Honeywell Limited t/as Honeywell Building Solutions (ABN 74 000 646 882)
and
BOND, Colin
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:1 of 2015 (21502749)
DELIVERED: 9 FEBRUARY 2015
HEARING DATES: 30 JANUARY 2015
JUDGMENT OF: KELLY J
CATCHWORDS:
CONTRACTS – Building, engineering and related contracts – Construction contract – Construction Contracts (Security of Payments) Act (NT) – Whether adjudicator found plaintiff was not liable to pay an amount to the first defendant – Whether adjudicator misconstrued s 33(1)(b) – Whether adjudicator made his determination in accordance with the requirements of s 33(1)(b) – Application of s 48 – Decision within jurisdiction – Claim dismissed
Australian Capital Territory (Self Government) Act s 48A
Construction Contracts (Security of Payments) Act ss 3, 29, 33, 33(1)(a), 33(1)(b), 34(3)(a), 47, 48
Supreme Court ActAJ Lucas Operations Pty Ltd v Mac-Attack Equipment Hire Pty Ltd and Another (2009) 25 NTLR 14; Brodyn Pty Ltd (t/as Time Cost and Quality) v Davenport (2004) 61 NSWLR 421; Craig v State of South Australia (1995) 184 CLR 163; Kirk v Industrial Relations Court of New South Wales (2010) 239 CLR 531; Pines Living Pty Ltd v John O’Brien & Walton Construction Pty Ltd [2013] ACTSC 156; Red Ink Homes Pty Ltd v Court [2014] WASC 52; referred to.
K & J Burns Electrical Pty Ltd v GRD Group (NT) Pty Ltd & Anor [2011] NTCA 1, followed.
REPRESENTATION:
Counsel:
Plaintiff:W Roper
First Defendant: G Beacham
Solicitors:
Plaintiff:Minter Ellison
First Defendant: Holding Redlich
Judgment category classification: B
Judgment ID Number: KEL15003
Number of pages: 20
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINLend Lease Building Contractors Pty Ltd t/as Sitzler Baulderstone Joint Venture v Honeywell Limited t/as Honeywell Building Solutions & Anor [2015] NTSC 10
No. 1 of 2015 (21502749)
BETWEEN:
LEND LEASE BUILDING CONTRACTORS PTY LTD (ABN 56 002 625 130) (FORMERLY BAULDERSTONE PTY LTD) AND SITZLER PTY LTD (ABN 17 091 273 013) TRADING AS SITZLER BAULDERSTONE JOINT VENTURE
Plaintiff
AND:
HONEYWELL LIMITED T/AS HONEYWELL BUILDING SOLUTIONS (ABN 74 000 646 882)
First Defendant
AND:
COLIN BOND
Second Defendant
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 9 February 2015)Background
The plaintiff (“SBJV”) and the First Defendant (“Honeywell”) entered into a subcontract under which Honeywell agreed to carry out works in respect of the new Darwin prison facility (“the Subcontract”).
On 5 August 2014 Honeywell served on SBJV a payment claim post-dated 5 August 2014 for $977,211.50 said to be owing under the Subcontract (“Payment Claim 31”).
On 25 or 26 August 2014 Honeywell served on SBJV a payment claim post-dated 5 September 2014 for $1,066,921.18 said to be owing under the Subcontract (“Payment Claim 32”).
On 7 November 2014, Honeywell applied for adjudications under the Construction Contracts (Security of Payments) Act (“the Act”) with respect to both Payment Claim 31 and Payment Claim 32 (“the Applications”).
The Applications were served on SBJV on 10 November 2014.
The Applications were served on a prescribed appointer under s 30 of the Act, the second defendant was appointed as adjudicator (“the Adjudicator”) and accepted the appointment on or about 13 November 2014.
On 24 November 2014, SBJV lodged with the Adjudicator, and served on Honeywell, responses under s 29 of the Act to both Applications (“the Responses”).
Each of the Responses raised an argument that Honeywell was in breach of its obligation to provide guarantees under clause 6.1 of the Subcontract and consequently was not entitled to payment of the amounts claimed by reason of clause 6.1(c)(i).
Clause 6.1(c) of the Subcontract provides:
6 Security
6.1 Bank Guarantees
(a)On the date of the Subcontract the Subcontractor shall provide Bank Guarantees to the Builder totalling the percentage stated in Schedule 1 of the Subcontract Sum.
(b)If either:
(i)the Subcontract Sum is increased by more than the amount stated in Schedule 1 above the sum for which security was last provided;
(ii)the Builder has recourse to the Bank Guarantees; or
(i)the Bank Guarantees cease to be enforceable,
then within 7 days after any such event the Subcontractor shall provide a further Bank Guarantee so that the total of the Bank Guarantees then held by the Builder is not less than the percentage stated in Schedule 1 of the then adjusted Subcontract Sum.
(c)If the Subcontractor is in breach of any of its obligations under clause 6.1:
(i)the Subcontractor shall have no entitlement whatsoever to payment under or in connection with the Subcontract or the Works until 7 days after such breach is remedied;
(ii)the Builder may nevertheless in its absolute discretion make a payment; and
(iii)the Builder may, in addition to its other rights under the Subcontract, retain any progress payment under the aggregate amount retained under this clause 6.1(c)(iii) equals the amount of the Bank Guarantee(s) which the Subcontractor has failed to provide.
(d)If, after an amount has been retained under clause 6.1(c)(iii), the Subcontractor remedies any breach of its obligations under clause 6.1, the Builder will within 7 days after the breach has been remedied, release to the Subcontractor all amounts retained under clause 6.1(c)(iii) that relate to that breach. If not released earlier pursuant to this clause, the amounts retained under clause 6.1(c)(iii) will be released in accordance with Clause 6.5.”
SBJV relied on the application of clause 6.1(c)(i) which provides that where Honeywell is in breach of its obligation to provide the bank guarantees required under clause 6.1(a) or (b), Honeywell “… shall have no entitlement whatsoever to payment under or in connection with the Subcontract or the Works until 7 days after such breach is remedied.”
It is common ground that a bank guarantee provided to SBJV under clause 6.1(a) expired on 30 August 2014. The Adjudicator sought additional submissions from the parties as to the ramifications of the expiry of this bank guarantee.
Honeywell’s response to this request was delivered on 27 November 2014. In it, Honeywell accepted that the guarantee had expired on 30 August 2014 before any payment dispute arose under Payment Claim 32, but argued (inter alia):[1]
(a)that the adjudicator was empowered to exercise SBJV’s discretion under clause 6.1(c)(ii) to make a payment notwithstanding that Honeywell was in breach of its obligation under clause 6.1(a)[2];
(b)in the further alternative that the adjudicator was empowered to exercise SBJV’s discretion under clause 6.1(c)(iii) to withhold from the payment claim an amount equal to the value of the outstanding guarantee and to direct payment of the balance; and
(c)in the further alternative, that the Adjudicator had the power to find that the entirety of the adjudicated amount would not be payable until 7 days after remedy of any default by the provision of a replacement bank guarantee.
SBJV’s response was delivered on 28 November 2014.
(a)SBJV did not abandon its contention that no money was payable on Payment Claim 32 (inter alia because Honeywell was in breach of its obligation under clause 6.1 to provide a bank guarantee and accordingly, pursuant to clause 6.1(c)(i), it had “no entitlement whatsoever to payment” under the Subcontract.)
(b)It contended, in the alternative, that if any money was owing, “the adjudicator must determine that such amount is payable on a date which is 7 days after the date on which Honeywell remedies the breach of clause 6 by providing a replacement guarantee” (ie nothing should be paid until then).
(c)Further in the alternative, SBJV contended that the Adjudicator should determine that only an amount up to $235,235.15 (the amount of the claim less the guarantee sum) is payable until such time as Honeywell provides a replacement guarantee.
The Adjudicator subsequently sought and obtained the Registrar’s consent to an extension of time under s 34(3)(a) of the Act and on 22 December 2014 he delivered his determinations on the two Applications.
He dismissed the first Application on the ground that Payment Claim 31 was not a valid payment claim under the Subcontract. There is no issue in this proceeding in relation to the dismissal of that Application.
It is the determination of the second Application (concerning Payment Claim 32) which is at issue in this proceeding. In it, the Adjudicator made the following findings.
(a)The bank guarantee had expired as at 30 August 2014.
(b)Honeywell was under an obligation to provide a further bank guarantee within seven (7) days of that expiration and that obligation had not been complied with.
(c)He had no jurisdiction to exercise any discretion SBJV may have under clause 6.1 to require SBJV to “make payment of the adjudicated amounts in the absence of the relevant bank guarantee”.
He concluded at paragraph [24] of the determination:
“[Honeywell] is entitled to payment of the first $734,693.20 of any adjudicated amount only after provision of the replacement bank guarantee in the sum of $734,693.20. The balance of any adjudicated amount in excess of this $734,693.20 is due within 7 days from release of my decision.”
Consistently with the finding at paragraph [24] the Adjudicator determined that the amount to be paid by SBJV to Honeywell was $989,191.06 (inclusive of GST) and that SBJV was to pay $254,497.86 of the adjudicated amount within seven days of the determination being released and the balance of $734,639.30 after provision of the replacement guarantee for that amount.
It should be noted that SBJV’s alternative contentions summarised in [13](b) and (c) above, although not explicitly based on the same analysis of clause 6.1, proposed a determination consistent with Honeywell’s contentions summarised in [12](b) and (c). In paragraph [24] of his determination, set out at [17] above, the Adjudicator adopted an approach consistent with the alternative submissions of SBJV set out at [13](c) above and with Honeywell’s alternate submissions in [12](b) above, although he did not set out his reasoning in reaching the conclusion that he did.
SBJV has brought the present proceeding seeking an order in the nature of certiorari that the Adjudicator’s determination be called up and quashed. The basis of that application is a contention that the Adjudicator made a finding (at paragraph [24] of his determination) that SBJV was not liable to pay $734,693.20 to Honeywell and that, having so found, he had no jurisdiction to determine that that amount should be paid.
The parties are agreed that the fact that SBJV did not specifically submit to the Adjudicator that it would be beyond his jurisdiction to order payment of an amount equal to the required guarantee after provision of a replacement guarantee – and indeed proposed this as an alternative available to him – does not raise an estoppel against SBJV in this proceeding. If the Adjudicator had no jurisdiction to do what he did, and his decision is reviewable by this Court, then his determination (at least in relation to payment of the $734,693.20) should be quashed. However, the fact that the Adjudicator had submissions before him from both parties submitting that the determination he made was one that was available to him under the terms of the Subcontract is relevant to the question of what it is he was actually deciding in paragraph [24] of his determination.
Plaintiff’s submissions
Subsection 48(3) of the Act provides that except as provided by subsection (1),[3] a decision or determination of an adjudicator on an adjudication cannot be appealed or reviewed.
The plaintiff submits that the Adjudicator made an error of the kind which falls outside the privative provision in s 48 and is hence reviewable by this court: ie the adjudicator has failed to observe an essential pre-condition for the exercise of that power, and hence for the existence of a valid adjudicator’s decision or determination,[4] or an error in determining “a necessary jurisdictional fact” the satisfaction of which is a necessary precursor to enlivening the powers under s 33 to make a determination.[5] (Counsel for the plaintiff submitted that these two expressions were to all intents and purposes synonymous and usable interchangeably.)
The plaintiff’s starting point is s 33(1) of the Act which provides (relevantly):
(1) An appointed adjudicator must, within the prescribed time or any extension of it under section 34(3)(a):
(a)dismiss the application without making a determination of its merits if:
(i)the contract concerned is not a construction contract; or
(ii)the application has not been prepared and served in accordance with section 28; or
(iii)an arbitrator or other person or a court or other body dealing with a matter arising under a construction contract makes an order, judgment or other finding about the dispute that is the subject of the application; or
(iv)satisfied it is not possible to fairly make a determination: (for the reasons set out); or
(b)otherwise – determine on the balance of probabilities whether any party to the payment dispute is liable to make a payment or to return any security and, if so, determine:
(i)the amount to be paid, or security to be returned, and any interest payable on it under section 35; and
(ii)the date on or before which the amount must be paid or the security must be returned.
The plaintiff submits that, having determined not to dismiss the application under s 33(1)(a), the adjudicator was obliged by s 33(1)(b) to go on to determine “whether any party to the payment dispute is liable to make a payment”. In written submissions, counsel for the plaintiff contended that the plain meaning of that phrase is that the adjudicator was obliged to determine whether the plaintiff had a then present liability to make a payment to Honeywell; not whether the plaintiff might become liable to make a payment to Honeywell on the happening of some future event. That would be to read the words “or may become liable in the future” after the words “is liable” in the section, a construction the plaintiff submitted was not open.
Counsel elaborated in oral submissions. He pointed out that the object of the Act is to promote security of payments under construction contracts,[6] and that the legislature intended to achieve this by facilitating timely payments between the parties to construction contracts, and providing for the rapid resolution of payment disputes arising under construction contracts and mechanisms for the rapid recovery of payments under such contracts.[7] A determination by an adjudicator under the Act does not provide for final relief and does not prevent the parties later litigating the same issues.[8]
He pointed out that the Act provided for an adjudicator to determine a payment dispute arising under a construction contract. Payment dispute is defined in the Act by reference to when money becomes payable under the contract.
“payment claim” means a claim made under a construction contract:
(a)by the contractor to the principal for payment of an amount in relation to the performance by the contractor of its obligations under the contract; or
(b)by the principal to the contractor for payment of an amount in relation to the performance or non-performance by the contractor of its obligations under the contract.[9]
A payment dispute arises if:
(a)a payment claim has been made under a contract and either:
(i)the claim has been rejected or wholly or partly disputed; or
(ii)when the amount claimed is due to be paid, the amount has not been paid in full; or
(b)when an amount retained by a party under the contract is due to be paid under the contract, the amount has not been paid; or
(c)when any security held by a party under the contract is due to be returned under the contract, the security has not been returned.
It was submitted that s 33(1)(b) of the Act must be read in the context of this general scheme and in light of the objects of the Act. Counsel contended that in that context, the task of an adjudicator who embarks on a determination of the merits of a dispute under s 33(1)(b) is to determine “on the balance of probabilities whether any party to the payment dispute is liable to make a payment” to another party on the payment claim the non-payment of which gave rise to the payment dispute being adjudicated. His task is not to make some free range enquiry about whether money might beowing under the contract on some other basis – only on the relevant payment claim to which the application relates. Further, it is not to enquire whether money might become owing in future – only whether it was owing on the payment claim at the date the payment dispute arose (whether the dispute arose as a result of non-payment on the alleged due date, or as a result of the claim being disputed).
The plaintiff contended that the adjudicator’s jurisdiction to make orders of the kind set out in s 33(1)(b)(i) and (ii) (ie the amount to be paid and the date on which it is to be paid) is dependent upon his having made a finding that the respondent is liable to make a payment on the payment claim being adjudicated. Absent such a finding, there is no jurisdiction to make a determination that any amount be paid and to fix the date for payment.
The plaintiff submits that the adjudicator here made a finding in paragraph [24] of his determination (set out at [17] above) that the sum of $734,693.20 was not owing at the date of the determination – and hence was not owing at the date the payment dispute arose. Hence, in relation to that amount, he had no jurisdiction to undertake the tasks set out in s 33(1)(b)(i) and (ii) and to determine, as he did, that $734,693.20 should be paid after the provision of a replacement bank guarantee.
In support of its position, the plaintiff relied on the Western Australian case of Red Ink Homes Pty Ltd v Court[10] in which an adjudicator had made a finding of fact about the existence of a concluded oral contract containing a term providing for payment of a percentage of the price when the work had reached “slab down” and then effectively refused to give effect to that term in his determination. Martin J in the Supreme Court of Western Australia held at [120]:
“On my assessment, Mr Court misapprehended or disregarded the nature and limits of his functions and powers, as regards the oral term of a construction contract he effectively chose to ignore as inconvenient. That was not a proper or rational approach to the applicability of a contractual term. Because of that, certiorari must, in the end, issue to quash all his three determinations.”
Counsel submitted that this was essentially what the Adjudicator did in this case. He found (at paragraph [24] of his determination) that SBJV was not liable to pay Honeywell $734,693.20 and then determined that SBJV should pay that amount to Honeywell after provision of a replacement guarantee. This conclusion is dependent upon an acceptance of the proposition that the Adjudicator in fact found (at paragraph [24]) that SBJV was not liable to pay Honeywell $734,693.20.
First Defendant’s Submissions
The first defendant took issue with the construction of s 33(1)(b) of the Act contended for by the plaintiff. Counsel for the first defendant pointed out that the existence of a payment dispute is not necessarily tied to the time payment becomes due under the relevant construction contract. Section 8 provides two ways for a payment dispute to arise. It can arise when the payment claim is not paid at the time for payment under the contract. Alternatively, the payment dispute can arise if a payment claim is rejected or disputed. Counsel submitted that there is nothing in the Act which precludes a payment claim being made requesting payment on a future date. If that claim is disputed, then a dispute could arise about whether the party serving the payment claim is entitled to payment at that future date – either absolutely or subject to a condition precedent: a liability to make a payment can be a liability to make a payment at a future date.
It is not necessary for me to decide this point for the purposes of this proceeding, as I have decided on an alternative basis. However, it seems to me that, although in general terms, the task of an adjudicator is (as the plaintiff contended) to determine whether an amount is owing on the payment claim which gave rise to the payment dispute being adjudicated, it would be a mistake for this Court to so construe the Act as to impose arbitrary limits on what may or may not be done unless that is plainly required by the wording of the Act. Here, the Court is invited by the plaintiff to place a construction on the Act which would have the effect that a payment dispute could never arise as a result of payment claim requesting an amount to be paid on a future date. I would be most loath to do that. As I have noted before[11] under the Act, the key concept is that of “payment dispute” – ie when (if at all) was the amount claimed payable under the contract. When amounts are payable, and when a payment dispute arises (and what kinds of dispute are possible) will in each case be determined by the contract.
Nor do I think that it is necessarily appropriate to construe the provisions of s 33(1)(b) as having the same jurisdictional “gateway” effect as the provisions of s 33(1)(a). If the requirements of s 33(1)(a) are not met, an adjudicator must dismiss the application without making a determination of its merits. If the adjudicator decides that the requirements of s 33(1)(a) have been met (without making an error of the kind that would render his decision a nullity in the process) then all that is required is that the adjudicator makes a bona fide (and reasonable) attempt to fulfil the functions set out in s 33(1)(b) – namely to determine on the balance of probabilities whether the respondent to the payment dispute is liable to make a payment and, if so, to determine the amount to be paid (and the interest payable) and the date on or before which the amount must be paid.[12]
The first defendant also contended that, on its proper construction, clause 6.1 of the Contract merely defers the time at which a progress payment must be made until seven days after any breach of clause 6.1 is remedied. The liability to make the progress payment continues to exist, and is not made conditional. It is not necessary for me to decide on the proper construction of the Contract for the purposes of this proceeding, but I find this submission difficult to reconcile with the apparently absolute nature of the wording of clause 6.1(c) that if the Subcontractor is in breach of any of its obligations under clause 6.1 the Subcontractor shall have no entitlement whatsoever to payment under or in connection with the Subcontract or the Works until seven days after such breach is remedied. It seems to me that that is the same as saying that the right to receive any further payment under the Subcontract is conditional on remedying the breach of clause 6.1 by providing a replacement guarantee. While no doubt a subcontractor would normally be motivated to provide the required guarantee in order to revive its right to receive payments, it is possible to envisage circumstances in which this would not be the case, and in such circumstances the subcontractor would never have a right to receive payments under the Subcontract.
Counsel for the first defendant submitted further that on a proper interpretation of clause 6.1, if the Builder were to exercise its right under clause 6.1(c)(iii) of the contract to retain an amount from a progress payment equal to the amount of the missing guarantee, then the Subcontractor would no longer be in breach of its obligation under clause 6.1 to provide a guarantee. Again, while it is not necessary for me to determine the proper construction of clause 6.1, that seems to me to be an impossible construction, in light of the seemingly absolute nature of clause 6.1(c)(i) and the fact that the power in clause 6.1(c)(iii) is expressed to be “in addition to the Builder’s other rights under the Subcontract”.
Counsel for the first defendant submitted that paragraph [24] of the Adjudicator’s determination (set out at [17] above) ought not to be read as a finding that SBJV had no liability to make a payment under the Contract to Honeywell. Rather, he contended that it should be seen as either:
(a)a finding that once the Adjudicator had retained from the progress claim an amount equivalent to the value of the guarantee Honeywell was obliged to provide, Honeywell would no longer be in breach of clause 6.1 and therefore would be entitled to payment of the balance of its progress claim after retention of the relevant amount; or
(b)an acceptance of Honeywell’s submission that he should exercise the discretion given to SBJV under clause 6.1(c)(iii) to retain from the progress claim an amount equal to the guarantee which Honeywell was obliged to provide. (These two propositions over-lap.)
Counsel for Honeywell submitted that the Adjudicator’s decision is consistent with either of these approaches.
Counsel submitted that if this is what the Adjudicator was doing in paragraph [24] – and in making the determination he did – he was not in error (on the basis of the proposed construction of clause 6.1 set out above). He submitted further that, even if this construction was wrong, and the Adjudicator was in error, it was an error within jurisdiction, namely an error in construction of the Subcontract. Put another way, even if the Adjudicator made the alleged error, this does not amount to a failure to comply with the basic and essential requirements of the Act or a misconstruction of the provisions of s 33 of the Act which gave him his jurisdiction. It is merely an error in either the construction of the Subcontract, or the application of the facts of the case to the provisions of the Subcontract.
The plaintiff and the first defendant were agreed on one point: it is not necessary for me to decide whether any jurisdictional error would render the Adjudicator’s decision reviewable by this Court (as must be the case if the principles in Kirk[13] were held to apply to the Northern Territory Supreme Court),[14] or whether an adjudicator’s decision is reviewable by the Court only in the arguably more restricted circumstances set out in Brodyn Pty Ltd v Davenport.[15]
The plaintiff contended that the error made by the Adjudicator amounted to non-compliance with a requirement being considered was intended by the legislature to be an essential pre-condition for the existence of an adjudicator’s determination (which would be reviewable on any view of the scope of s 48). The first defendant contended that even if the Court adopted a narrower view of the scope of s 48 to the effect that review was available for any jurisdictional error, any error made by the Adjudicator in this case is not a jurisdictional one – merely one of construction of the Subcontract or the application to it of the facts.
I agree with the contention of the first defendant. There is nothing on the face of the Adjudicator’s determination (including paragraph [24]) to indicate that the Adjudicator has misconstrued s 33(1)(b), or gone outside his allocated role in determining whether SBJV owed money to Honeywell on Payment Claim 32. The submissions of both SBJV and Honeywell that the Adjudicator had specifically requested, and that were before him when he made the determination, throw light on what it was that he decided in paragraph [24]. I do not construe his remarks in paragraph [24] as a finding that SBJV had no liability to pay Honeywell $734,693.20: rather he appears to have made a finding that, under the Subcontract, SBJV is liable to pay $734,693.20 once it has provided a replacement guarantee. It seems to me that, having determined pursuant to s 33(1)(a) not to dismiss the application without determining the merits, he was making a bona fide attempt to do what was required of him under s 33(1)(b), namely to determine whether SBJV was liable to pay money to Honeywell under that payment claim and then to determine how much was payable and when it should be paid. Whether he made any errors in doing so it is not necessary for me to decide: any errors he did make were errors within jurisdiction.
The plaintiff’s claim is dismissed.
[1] It also argued that clause 6.1(c) was of no effect given s 10 of the Act, but this argument is of no relevance to this proceeding.
[2] This argument was rejected by the Adjudicator in paragraph [23] of his determination.
[3] This subsection gives a right of appeal to the Local Court against a decision under s 33(1) dismissing an application without considering the merits.
[4] Brodyn Pty Ltd (t/as Time Cost and Quality) v Davenport (2004) 61 NSWLR 421; K & J Burns Electrical Pty Ltd v GRD Group (NT) Pty Ltd & Anor [2011] NTCA 1 at [104]–[105] per Kelly J and [249] per Olsson AJ; AJ Lucas Operations Pty Ltd v Mac-Attack Equipment Hire Pty Ltd and
Another (2009) 25 NTLR 14 at [13] per Mildren J and at [32] per Southwood J
[5] Craig v State of South Australia (1995) 184 CLR 163 at 177 - 178
[6] Subsection 3(1)
[7] Subsection 3(2)
[8] Section 47
[9] Definition in s 4
[10] [2014] WASC 52 at [113] to [114]
[11] K & J Burns Electrical Pty Ltd v GRD Group (NT) Pty Ltd & Anor [2011] NTCA 1 at [153]
[12] This is where the payment dispute concerns the liability to make a payment. Provision is also made for disputes relating to the entitlement to the return of security.
[13] Kirk v Industrial Relations Court of New South Wales (2010) 239 CLR 531
[14] These principles have been held to apply to the Supreme Court of the ACT, on the basis of s 48A of the Australian Capital Territory (Self Government) Act which entrenches the powers of the ACT Supreme Court so that they are not amenable to alteration by the ACT legislative assembly: Pines Living Pty Ltd v John O’Brien & Walton Construction Pty Ltd [2013] ACTSC 156 at [28]. By contrast the powers and jurisdiction of the Northern Territory Supreme Court are contained in Northern Territory legislation: the Supreme Court Act.
[15] Brodyn Pty Ltd (t/as Time Cost and Quality) v Davenport (2004) 61 NSWLR 421
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