McNab NQ Pty Ltd v Walkrete Pty Ltd

The case of McNab NQ Pty Ltd v Walkrete Pty Ltd involved a dispute between the applicant, McNab NQ Pty Ltd, and the first respondent, Walkrete Pty Ltd. The applicant, a construction company, had terminated its sub-contract with Walkrete, a subcontractor, due to a safety breach caused by Walkrete's employees. The termination was based on the sub-contract clause allowing termination for the respondent's default "in the performance or observance of any serious condition". Walkrete subsequently sought payment under the Building and Construction Industry Payments Act 2004, which was upheld by an adjudicator. McNab sought judicial review of the adjudicator's decision, arguing that the adjudicator lacked jurisdiction and that the sub-contract was not validly terminated.

The court was required to determine whether the adjudicator had the jurisdiction to make the adjudication decision and whether the sub-contract was properly terminated for breach of a "serious condition". The key legal issues were whether the safety breach constituted a "serious condition" under the sub-contract and whether the adjudicator's decision was subject to judicial review under the Judicial Review Act 1991. The court also needed to consider whether the adjudicator's decision was vitiated by jurisdictional error.

The court held that the adjudicator had jurisdiction to determine the adjudication application, as the sub-contract's definition of "serious condition" was broad enough to encompass the safety breach. The court found that the safety breach constituted a "serious condition" as it posed a substantial risk to the applicant's employees and other workers on site. Consequently, the termination of the sub-contract was valid. The court also found that the adjudicator's decision was not subject to judicial review as it was a quasi-judicial decision, and no jurisdictional error was identified. As a result, the court dismissed McNab's application for judicial review.

The court made several orders, including a declaration that the adjudication decision was void and an order that it be set aside. The court also issued injunctions restraining Walkrete from enforcing the adjudication decision and directed that the monies paid into court by McNab be paid out to it. The court reserved the issue of costs and directed the parties to file written submissions on costs within 14 days.