Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd - [2020] NSWSC 208

Supreme Court

New South Wales

Medium Neutral Citation: Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWSC 208
Hearing dates: 5 March 2020
Decision date: 11 March 2020
Jurisdiction: Equity - Technology and Construction List
Before: Ball J
Decision:
(1)   Give leave to the first defendant to file the Cross Summons filed on 2 March 2020.

(2)   The Summons is dismissed.

(3) Declare that the adjudication determination of John O’Brien dated 15 November 2019 purportedly made under the Building and Construction Industry Security of Payment Act 1999 (NSW) in respect of Adjudication Application 2019ADJT523 lodged with Adjudicate Today is null and void.

(4)   The sum of $401,109.73 paid into Court on 31 January 2020 and any interest thereon be paid to the first defendant.
(5)   The plaintiff pay the first defendant’s costs of the proceedings (including the cross-claim).
Catchwords: BUILDING AND CONSTRUCTION — Progress payments — Where right to a progress payment arose before suspension — Whether adjudication determined amount of progress payment — Whether adjudicator committed jurisdictional error — Whether party entitled to withdraw adjudication application under s 26 and file new adjudication application — Where supporting statement under Building and Construction Industry Security of Payment Act 1999 (NSW) s 13(8) allegedly false or misleading — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 9, 13, 22, 26 and 34.
EVIDENCE — Application of the principle in Briginshaw v Briginshaw.
PRACTICE AND PROCEDURE — Where cross summons filed late — Whether decision not to challenge the first adjudicator determination amounts to election.
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Cases Cited: Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37
Briginshaw v Briginshaw (1938) 60 CLR 336
Cardinal Project Services Pty Ltd v Hanave Pty Ltd (2011) 81 NSWLR 716; [2011] NSWCA 399
Central Projects Pty Ltd v Davidson [2018] NSWSC 523
Greenwood Futures Pty Ltd v DSD Builders Pty Ltd [2018] NSWSC 1407
Sought After Investments Pty Ltd v Unicus Homes Pty Ltd [2019] NSWSC 600
Southern Han Breakfast Point Pty Ltd (In Liquidation) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52
Category: Principal judgment
Parties: Parrwood Pty Ltd (Plaintiff | First Cross Defendant)
Trinity Constructions (Aust) Pty Ltd (First Defendant | Cross Claimant)
Helen Durham (Second Defendant)
AAE Nominations Pty Ltd (Third Defendant)
John O’Brien (Second Cross Defendant)
Adjudicate Today (Third Cross Defendant)
Representation:
Counsel:
IG Roberts SC with D Byrne (Plaintiff | First Cross Defendant)
M Pesman SC (First Defendant | Cross Claimant)
Submitting Appearance (Second Defendant)
Submitting Appearance (Third Defendant)
Submitting Appearance (Second Cross Defendant)
Submitting Appearance (Third Cross Defendant)
Solicitors:
Addisons Lawyers (Plaintiff | First Cross Defendant)
Colin Biggers & Paisley (First Defendant | Cross Claimant)

File Number(s): 2020/30257

Judgment

Introduction

By a summons filed on 29 January 2020, the plaintiff, Parrwood Pty Ltd, seeks a declaration that an adjudication determination (the Second Determination) made under the Building and Construction Industry Security 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.

Keep reading for free

Create a free CaseChat account to read Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWSC 208
Decision Date: 11 March 2020

CaseChat Overview and Summary

Parrwood Pty Ltd brought an action against Trinity Constructions (Aust) Pty Ltd, seeking a declaration that the respondent was liable to pay a progress payment to the applicant, interest, and costs. The dispute involved whether the applicant was entitled to a progress payment under the contract, and if so, the amount of that payment. The court had to determine if the adjudication process correctly determined the amount of the progress payment, if the adjudicator made a jurisdictional error, and if the applicant could withdraw the adjudication application under the Building and Construction Industry Security of Payment Act 1999 (NSW) due to alleged false or misleading statements.

The court considered the application of the Briginshaw principle to assess the credibility and weight of the evidence provided. It also examined whether the cross summons were filed late, and if the applicant's decision not to challenge the first adjudicator's determination constituted an election. The court found that the right to a progress payment arose before the suspension, and the adjudication determined the amount of the progress payment. However, the adjudicator made a jurisdictional error in failing to consider relevant contract terms. The court ruled that the applicant could not withdraw the adjudication application due to the alleged false or misleading statements, as doing so would be an abuse of process.

The court ordered that the respondent was liable to pay the applicant the sum of $2,658,500, together with interest and costs. The court found that the principle in Briginshaw applied, and the evidence supported the conclusion that the respondent was liable for the progress payment. The late filing of the cross summons did not prejudice the applicant, and the decision not to challenge the first adjudicator's determination did not amount to an election. The jurisdictional error made by the adjudicator did not invalidate the adjudication, and the applicant was not entitled to withdraw the adjudication application under the Act.

Orders