COUNSEL: Mr. F. Corsaro SC for appellant Mr. B. Walker SC with Mr. M. Christie for 1st respondent
SOLICITORS: Doyles, Sydney for appellant Baker & McKenzie, Sydney for 1st appellant Colin Biggers & Paisley, Sydney for 2nd respondent
CATCHWORDS: BUILDING AND CONSTRUCTION - Progress payments - Building & Construction Industry Security of Payment Act - Progress claim - Adjudicator's determination - Grounds for judicial intervention - Calculation of progress payment - Meaning of "amount calculated in accordance with the terms of the contract" where contract provides for certification by superintendent - Discretion.
Siemens entered into a construction contract with Transgrid to which the Building & Construction Industry Security of Payment Act 1999 (the Act) applied. On or about 1 August 2003, Siemens served a payment claim in accordance with s.13 of the Act. Transgrid responded by serving a payment schedule in accordance with s.14 of the Act.
On or about 29 August 2003, Siemens applied for adjudication of the payment claim pursuant to s.17 of the Act. The adjudicator accepted the adjudication application, notifying the parties by letter dated 3 September 2003; and on or about 15 October 2003, the adjudicator issued a written determination.
On 10 October 2003, Transgrid commenced proceedings in the Supreme Court against Siemens and the adjudicator, and by an Amended Summons dated 20 October 2003 Transgrid sought declaratory relief and an order of the nature of certiorari setting aside the determination, on the ground that the adjudicator had failed to determine the amount calculated in accordance with the terms of the contract, as required by s.9(a) of the Act. The Master held that, even if the ground were made out and amounted to a jurisdictional error, certiorari should be refused as a matter of discretion.
HELD
An adjudicator’s determination is only reviewable for jurisdictional error where the determination is not a determination within the meaning of the Act, because of non-satisfaction of some pre-condition which the Act makes essential for the existence of such a determination: Brodyn Pty. Limited v. Davenport[2004] NSWCA 394. The view expressed in Musico v. Davenport[2003] NSWSC 977 and the cases which followed it are incorrect, to the extent that they hold that relief in the nature of certiorari is available to quash a determination…
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.
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Details
AGLC
Transgrid v Siemens Ltd [2004] NSWCA 395
Case
[2004] NSWCA 395
Decision Date
CaseChat Overview and Summary
In *Transgrid v Siemens Ltd*, the Supreme Court of New South Wales considered a dispute concerning progress payments under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The case involved an appeal from an adjudicator's determination regarding a progress claim made by Siemens Ltd against Transgrid.
The central legal issue before the Court was whether the adjudicator's determination was void, thereby providing grounds for judicial intervention. Specifically, the Court had to consider the meaning of "amount calculated in accordance with the terms of the contract" in circumstances where the contract stipulated that progress payments were subject to certification by a superintendent, and whether the provisional nature of such payments, pending final determination of contractual rights, could be a basis for withholding relief.
The Court reasoned that the legislature's emphasis on the timely making of progress payments indicated that the provisional nature of these payments, or the existence of other avenues for resolving contractual disputes, would not typically be a sufficient reason to deny relief under the Act. The Court adopted an approach where relief would only be granted if the adjudicator's determination was found to be void. Applying this reasoning, the Court concluded that the adjudicator's determination was not void.
Consequently, the appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
However, I would comment that the legislature has treated the question of whether progress payments should be made as an important question, and this suggests that the fact that the payments are provisional only and the rights of the parties will be determined otherwise would not normally be a ground for withholding relief. Particularly this is so on the approach I have taken, where relief is available only if the determination is found to be void. CONCLUSION For those reasons, in my opinion the appeal should be dismissed with costs.