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Transgrid v Siemens

Transgrid v Siemens

Case [2004] NSWSC 87 25 February 2004

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CITATION: Transgrid v Siemens & Anor [2004] NSWSC 87 revised - 1/03/2004

HEARING DATE(S): 09/12/03, 10/12/03

JUDGMENT DATE:
25 February 2004

JURISDICTION:
Equity Division
Technology & Construction List

JUDGMENT OF: Master Macready at 1

DECISION: Summons dismissed with costs.

CATCHWORDS: ADMINISTRATIVE LAW - Whether the determination of an adjudicator under the Building and Construction Industry Security of Payment Act 1999 (NSW) is open to judicial review - Order in the nature of certiorari sought - discretionary considerations as to the granting of relief - relief refused on discretionary grounds. - CONTRACT LAW - Construction contract - progress claims issued pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW) - Discussion as to whether an adjudictor can exercise the powers of a certifier under the construction contract.

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999
Scheme for Construction Contracts (England and Wales) Regulations 1998
Housing Grants Construction and Regeneration Act 1996,

CASES CITED: Craig v The State of South Australia (1995) 184 CLR 163 at 178
Anisminic Limited v Foreign Compensation Commission [1969] 2 AC 147 at 171
Musico & Ors v Davenport & Ors [2003] NSWSC 977 Brodyn Pty Limited t/as Time Cost and Quality (ACN 001 998 830) v Philip Davenport & Ors [2003] NSWSC 1019
Abacus v Davenport & Ors [2003] NSWSC 1027
Multiplex Constructions Pty Limited v Luikens & Ors [2003] NSWSC 1140
Hill v King (1993) 31 NSWLR 654 at 661
Leighton Contractors Pty Limited v Campbelltown Catholic Club [2003] NSWSC 1103 at paragraph 73 Transgrid v Walter Construction Group [2004] NSWSC 21
Gill v The Residential Tribunal (2001) 53 NSWLR 425
Valentine v Eid (1992) 27 NSWLR 615
IW v City of Perth (1997) 191 CLR 1 at 12
WMC Resources Limited v Leighton Contractors Pty Limited [1999] WASCA 10, paragraphs 15-26
Atlantic Civil Pty Limited v Water Administration Ministerial Corporation (1992) 39 NSWLR 468
Brodyn Pty Limited t/as Time Cost and Quality (CAN 001 998 830) v Phillip Davenport & Ors [2003] NSWSC 1019 at [14]
Emag Constructions Pty Ltd v Highrise Concrete Contractors (Aust) Pty Ltd [2003] NSWSC 903 at [35]
Luchitti t/as Palluc Enterprises v Tolco Pty Ltd [2003] NSWSC 1070 at [40]
Beckhaus v Brewarrina Shire Council [2002] NSWSC 960
Brewarrina Shire Council v Beckhaus Civil Pty Limited [2003] NSWCA 4
Walter Construction Group Limited v CPL (Surry Hills) Pty Limited [2003] NSWSC 266
R v PLV (2001) 51 NSWLR 736 at 743-4
Campbell v Edwards [1976] 1 WLR 403
Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex Parte Palme (2003) 77 ALJR 1829
Re Minister for Immigration and Multicultural Affairs, Ex Parte Lam (2003) 77 ALJR 699 at 703
Re McBain, Ex Parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 383
Glennan v The Commissioner of Taxation (2003) 77 ALJR 1195 at 1198
Re Heerey, Ex Parte Heinrich (2001) 185 ALR 106
R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozane Theatres (Australia) Ltd (1949) 78…

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.

Continue reading Transgrid v Siemens

Details

AGLC: Transgrid v Siemens [2004] NSWSC 87
Case: [2004] NSWSC 87
Decision Date: 25 February 2004

CaseChat Overview and Summary

Transgrid brought proceedings against Siemens, seeking to set aside an adjudicator’s determination under the Building and Construction Industry Security of Payment Act 1999 (NSW). The adjudicator had made an order that Siemens be paid an amount owed to them, which Transgrid contended was erroneous and that the adjudicator had no jurisdiction to make such an order. The case was heard in the Supreme Court of New South Wales. The central issue before the court was whether the adjudicator had jurisdiction to make the determination in question and, if so, whether Transgrid could be granted relief from the order on discretionary grounds. The court had to consider the scope of the adjudicator’s powers under the Act and the extent to which the adjudicator's decision was reviewable.

The court examined the statutory framework and found that the adjudicator had acted within their jurisdiction under the Security of Payment Act. The court emphasised that adjudicators have broad powers to determine disputes and that their decisions are generally final and binding unless there is a jurisdictional error. However, the court also recognised that relief from an adjudicator’s determination could be granted in exceptional circumstances where justice demands it. In this case, Transgrid argued that the adjudicator had overstepped their authority by effectively acting as a certifier under the construction contract, which was a role reserved for Transgrid. Despite this, the court held that the adjudicator's determination did not constitute a jurisdictional error and that the relief sought by Transgrid was not warranted on the discretionary grounds presented.

Given that the adjudicator's decision was not found to be erroneous and that the court declined to exercise its discretion to set aside the order, the relief sought by Transgrid was refused. The court found that there were no grounds for the order in the nature of certiorari and that the adjudicator had correctly exercised their powers under the Act. The decision underscored the importance of the finality of adjudication processes and the limited circumstances in which judicial intervention is appropriate. As a result, the court dismissed Transgrid’s application and affirmed the adjudicator’s determination.

Orders