Patrick Stevedores Operations No. 2 Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd

The case involved Patrick Stevedores Operations No. 2 Pty Ltd and McConnell Dowell Constructors (Aust) Pty Ltd. The dispute arose under a contract for the construction of a wharf at Botany Bay, where Patrick Stevedores sought declarations that two adjudication determinations were void. The first determination, made by Adjudicator 1, found in favour of McConnell Dowell, while the second, by Adjudicator 2, found in favour of Patrick Stevedores. The matter was heard in the Supreme Court of New South Wales.

The court was required to address several legal issues. Firstly, whether a one-off payment due under the contract after termination constituted a "progress payment" that could support a payment claim. Secondly, whether the reference date for payment was fixed by the contract or under section 8(2)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW). Thirdly, the effect of the contract's termination before the contractual reference date arose. Fourthly, whether a party could withdraw an adjudication application and file a new one. Fifthly, whether the adjudicator's failure to consider all claims and submissions constituted a jurisdictional error. Lastly, whether the adjudicator's decision based on a matter not put by either party denied natural justice.

The court held that the one-off payment due after termination was not a "progress payment" within the meaning of the Act. The reference date for payment was fixed by the contract, and termination before the reference date arose meant the payment was not due. A party could withdraw an adjudication application and file a new one, but only if the previous application had not been determined. The adjudicator's failure to consider all claims and submissions did not constitute a jurisdictional error, but the decision based on a matter not put by either party denied natural justice. The court found that the first adjudication determination was void, and the second was valid.

The court made several orders, including declaring that the first adjudication determination was void and of no effect. The second adjudication determination was declared valid and enforceable. The case highlights the importance of ensuring that all relevant matters are considered in adjudication proceedings and that parties understand the implications of terminating a contract before a reference date arises.