Sky General Services Pty Ltd v Bauen Constructions Pty Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Sky General Services Pty Ltd V Bauen Constructions Pty Ltd [2013] NSWCA 191

Hearing dates:

19 June 2013

Decision date:

19 June 2013

Before:

Barrett JA (at [1] and [18]); Gleeson JA (at [17])

Decision:

Application for leave to appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave to appeal - no challenge to substantive result - contention that wrong conclusion reached on two of three alternative bases of determination - challenge to costs order only

Legislation Cited:

Building and Construction Industry Security of Payment Act 1999, ss 13(4), 17(2)

Cases Cited:

Chase Oyster Bar Pty Ltd v Hamo Pty Ltd [2010] NSWCA 190; (2010) 78 NSWLR 393
House v The King [1936] HCA 40; (1936) 55 CLR 499
Marshall v Prescott [2013] NSWCA 152

Category:

Interlocutory applications

Parties:

Sky General Services Pty Ltd - Appellant
Bauen Constructions Pty Ltd - Respondent

Representation:

Mr A T Lynch - Applicant
Mr D S Weinberger - Respondent
Lexi Fori Lawyers - Applicant
McCabes Lawyers Pty Ltd - Respondent

File Number(s):

2012/354707

 Decision under appeal 

Citation:

[2012] NSWSC 1123

Date of Decision:

2012-09-18 00:00:00

Before:

Sackar J

File Number(s):

2012/230241

Judgment

1. BARRETT JA: This application for leave to appeal arises from a decision of Sackar J in the Equity Division of the Supreme Court, in proceedings in which Bauen Constructions Pty Ltd sought relief against Sky General Services Pty Ltd in respect of certain adjudications under the Building and Construction Industry Security of Payment Act 1999.

1. Sackar J decided that an adjudicator acting under that Act had fallen into jurisdictional error in three respects.

1. His Honour's first finding of error concerned the construction of s 13(4) of the Act and the calculation of the time period under that section.

1. The second finding concerned misdirection of the adjudicator of himself as to the correct statutory test under s 13(4), with the result that the adjudication was void.

1. Third, the judge dealt with an argument that there had been denial of procedural fairness because the adjudicator had failed to consider Bauen's adjudication response. That argument was upheld.

1. For each of three separate and independently articulated reasons advanced as alternatives, the judge ordered that the adjudicator's determinations be quashed, thereby granting the relief that Bauen had sought. In addition, the judge ordered that Sky pay Bauen's costs.

1. The case that Sky wishes to pursue in the Court of Appeal relates in a real sense to the costs order only. Sky notes that the judge dealt with the substantive matter on the three alternative bases…