Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140
HEARING DATE(S):
18 September, 2003
JUDGMENT DATE:
4 December 2003
JURISDICTION:
Equity Division Technology & Construction List
JUDGMENT OF:
Palmer J
DECISION:
Jurisdictional error of law shown; adjudicator's Determination quashed.
CATCHWORDS:
ADMINISTRATIVE LAW - Whether the determination of an adjudicator under the Building and Construction Industry Security of Payment Act 1999 is open to judicial review - whether an adjudication may be reviewed for error of law on the face of the record - the extent of an adjudicator's jurisdiction - what must be disclosed by a payment schedule under the Act - whether there were errors of law going to jurisdiction - whether whole Determination must be quashed - discretionary considerations as to granting of relief - consequences where Determination quashed.
Multiplex Constructions Pty Limited - Plaintiff Jan Luikens - First Defendant Lahey Detailed Joinery Pty Ltd - Second Defendant
FILE NUMBER(S):
SC 55036/03
COUNSEL:
M.G. Rudge SC and D.A.C. Robertson - Plaintiff F.C. Corsaro SC and J.J. Young - Second Defendant
SOLICITORS:
Minter Ellison - Plaintiff Sparke Helmore - First Defendant Colin Biggers & Paisley - Second Defendant
Introduction
1 By Summons filed in the Administrative Law List of the Common Law Division on 8 August 2003,…
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.
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AGLC
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140
Case
[2003] NSWSC 1140
Decision Date
CaseChat Overview and Summary
Multiplex Constructions Pty Ltd, an appellant, brought this case against Luikens, the respondent, to the Federal Court of Australia. The dispute arose from an adjudication under the Building and Construction Industry Security of Payment Act 1999. The appellant sought to challenge the validity of a payment determination made by the adjudicator, arguing that the adjudicator had made an error of law that affected their jurisdiction.
The primary legal issue before the court was whether an adjudication under the Act is subject to judicial review and, if so, the extent of that review. Specifically, the court needed to determine if an adjudication could be reviewed for jurisdictional errors of law and whether such errors could lead to the entire determination being quashed. Additionally, the court had to examine the requirements of a payment schedule under the Act and whether any deficiencies in the disclosure could be grounds for quashing the determination.
The court found that while adjudications under the Act are not generally subject to judicial review, there are exceptions where jurisdictional errors of law are present. In this instance, the court held that the adjudicator had indeed made errors of law that went to their jurisdiction, specifically in relation to the disclosure requirements of the payment schedule. As a result, the court concluded that the entire determination must be quashed. However, the court also considered discretionary factors in deciding whether to grant relief and determined that the appropriate remedy was to quash the determination without ordering the respondent to pay the full amount claimed by the appellant.
The final orders of the court included quashing the determination made by the adjudicator and directing that no further payment be made under the determination. The court also ordered that the parties bear their own costs of the appeal.