Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd

Thiess Pty Ltd filed an application against Warren Brothers Earthmoving Pty Ltd, seeking a declaration that the adjudication decision of the third respondent was void or should be set aside due to jurisdictional error. Warren Brothers contended that the adjudication decision should not be declared void as the jurisdictional error affected only part of the decision and a more convenient and satisfactory remedy existed. The court was required to determine whether the adjudication decision should be declared void and whether the court should depart from the general rule that costs follow the event in light of the different outcomes on the grounds of contention. Additionally, the court was required to decide whether an indemnity certificate should be granted to Warren Brothers pursuant to s 15 of the Appeal Costs Fund Act 1973.

The court found that the adjudication decision should be declared void due to the jurisdictional error. It found that the error was jurisdictional in nature and affected the entire decision, rather than just a part of it. The court also found that the general rule that costs follow the event should not be departed from, as the first ground of contention was not dominant and separable from the other two grounds. The court held that the third ground of contention was not dominant and separable from the first ground and therefore, the general rule should apply. The court found that an indemnity certificate should be granted to Warren Brothers pursuant to s 15 of the Appeal Costs Fund Act 1973.

The court declared the decision of the third respondent void, set aside the judgment in BS No. 1927/12, and ordered that the moneys paid into Court of $499,321.28 on 7 March 2012 by the applicant, together with any accretions, be paid out of Court forthwith to the applicant. The court also discharged the applicant’s undertaking as to damages, ordered the first respondent to pay the applicant’s costs of and incidental to the proceedings including the hearing on 19 April 2013 on a standard basis to be assessed, and dismissed the application in BS No. 4471 of 2012. The court ordered the applicant to pay the first respondent’s costs of and incidental to the proceeding (including any reserve costs) on a standard basis to be assessed, and granted the first respondent an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973.