Nefiko Pty Ltd v Statewide Form Pty Ltd - [2014] NSWSC 442

Supreme Court

New South Wales

Medium Neutral Citation: Nefiko Pty Ltd v Statewide Form Pty Ltd [2014] NSWSC 442
Hearing dates: 11 April 2014
Decision date: 11 April 2014
Jurisdiction: Equity Division
Before: Ball J
Decision:
1. Application for interlocutory relief dismissed.
2. The Plaintiff pay the defendant's costs of the interlocutory application.

Catchwords: BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - adjudication determination - whether denial of natural justice - jurisdiction of adjudicator - whether adjudicator took into account all relevant factual matters
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Cases Cited: John Holland Pty Ltd v TAC Pacific Pty Ltd [2009] QSC 205; [2010] 1 QdR 302
Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2008] NSWSC 399
Category: Interlocutory applications
Parties: Nefiko Pty Ltd (ABN 69 002 401 676) (Plaintiff)
Statewide Form Pty Ltd (ABN 34 159 561 403) (Defendant)
Representation: Counsel:
Robert Macaulay (Pryor Tzannes & Wallis)
AJ Macauley
Solicitors:
Pryor Tzannes & Wallis (Plaintiff)
Avondale Lawyers (Defendant)

File Number(s): 2014/94834
Publication restriction: None

EX TEMPORE Judgment

By a summons filed on 28 March 2014, the plaintiff, Nefiko Pty Ltd, seeks an interlocutory injunction restraining the defendant from acting or seeking to enforce an adjudication determination of Mr Robert Sundercombe (the Adjudicator) dated 17 March 2014 under the provisions of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act). The injunction is sought on the basis that the Adjudicator, in making his determination, failed to comply with the rules of natural justice.

On 31 December 2013, the defendant, who had been engaged to perform construction work on a house owned by Ms Janette Cheong in which Ms Cheong resides, served a payment claim under the Act and subsequently served a notice of intention to lodge an adjudication application under the Act.

The plaintiff did not serve a payment schedule in response to either the payment claim or the notice served by the defendant.

On 19 February 2014, the defendant made an adjudication application in respect of the payment claim. That application was heard by the Adjudicator.

By letter dated 13 March 2014, the solicitors for the plaintiff sought to make submissions to the Adjudicator concerning the Adjudicator's jurisdiction. In effect, the submissions asserted that the Adjudicator did not have jurisdiction because the contract to perform the relevant works was not between the defendant and the plaintiff but rather was a contract between the defendant and Ms Cheong and that, consequently, the operation of the Act was excluded by s 7(2)(b). Relevantly, that section provides that the Act does not apply to:

A construction contract for the carrying out of residential building work (within the meaning of the Home Building Act 1989) on such part of any premises as the party for whom the work is carried out resides in or proposes to reside in.

In short, it was submitted that Ms Cheong was a…

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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Details

Case: [2014] NSWSC 442
Decision Date: 11 April 2014

CaseChat Overview and Summary

Nefiko Pty Ltd brought an action against Statewide Form Pty Ltd, a subcontractor, for an adjudication determination made under the Building and Construction Industry Security of Payment Act 1999 (NSW). The dispute arose from a payment claim made by Nefiko for additional works performed on a construction project. The primary issue before the court was whether the adjudicator's decision was tainted by a denial of natural justice and whether the adjudicator had jurisdiction to make the determination. Additionally, the court needed to determine if the adjudicator had considered all relevant factual matters.

The court held that the adjudicator did not deny natural justice by refusing to allow the subcontractor to present evidence orally. It was noted that the adjudicator had the discretion to determine the manner in which evidence was presented and that the written evidence provided was sufficient for a fair adjudication. The court further found that the adjudicator's decision was not flawed by jurisdictional error, as the adjudicator had the authority to make the determination under the Act. The court also determined that the adjudicator had considered all relevant factual matters and had not overlooked any significant evidence.

In conclusion, the court dismissed Nefiko's claims and held that the adjudicator's determination was valid. The court found no evidence of a denial of natural justice or jurisdictional error, and that the adjudicator had exercised their powers correctly. The decision was upheld, and Nefiko's action was dismissed with costs.

Orders