University of Sydney v Cadence Australia Pty Ltd

[2009] NSWSC 635

CITATION:	The University of Sydney v Cadence Australia Pty Limited & Anor [2009] NSWSC 635 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	3 July 2009
JUDGMENT DATE :	15 July 2009
JUDGMENT OF:	Hammerschlag J
DECISION:	Orders restraining the first defendant from seeking adjudication of its payment claim dated 31 May 2009.
CATCHWORDS:	BUILDING AND ENGINEERING CONTRACTS — payment claim — Building and Construction Industry Security of Payment Act 1999 (NSW) ss 5, 13, 14, 15, 17, 22 – where claimant seeks to re-agitate unsuccessful claim already adjudicated upon as part of a new wider claim – held claimant's statutory entitlement was exhausted and re-use of the machinery of the Act in the circumstances was an abuse of process and should be restrained – Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69 and Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd trading as Novatec Constructions Systems [2009] NSWSC 416 followed
LEGISLATION CITED:	Building and Construction Industry Security of Payment Act 1999 (NSW
CASES CITED:	Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69 Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd trading as Novatec Constructions Systems [2009] NSWSC 416 Brewer v Brewer & Anor (1953) 88 CLR 1 Williams & Ors v Spautz (1992) 174 CLR 509 Ex parte The Amalgamated Engineering Union (Australian Section); Re Jackson & Anor (1937) 38 SR (NSW) 13 Kuligowski v Metrobus (2004) 220 CLR 363
PARTIES:	The University of Sydney - Plaintiff Cadence Australia Pty Limited - First Defendant Helen Durham - Second Defendant
FILE NUMBER(S):	SC 55053/2009
COUNSEL:	A.J. Greinke [Plaintiff] M.A. Ashhurst SC [Defendants]
SOLICITORS:	Minter Ellison Lawyers [Plaintiff] BCP Lawyers & Consultants [First Defendant] Philip Davenport [Second Defendant]

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

HAMMERSCHLAG J

15 JULY 2009

55053/09 UNIVERSITY OF SYDNEY –V- CADENCE AUSTRALIA PTY LIMITED & ANOR

JUDGMENT

INTRODUCTION

1 By Summons sued out of this Court on 25 June 2009, the plaintiff seeks orders that the first defendant withdraw an adjudication application dated 18 June 2009 (“the present application”) made to the second defendant under the provisions of the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”), and that the first defendant be restrained from seeking adjudication of the payment claim dated 31 May 2009, the subject of the application. In the alternative the plaintiff seeks declarations of right in relation to the present application.

2 It is put that the payment claim makes claims previously determined under an adjudication determination dated 10 March 2009. It is put that the payment claim and the present application are a repetitious and therefore impermissible use of the adjudication process under the Act to require an adjudicator or successive adjudicators to execute the same statutory task in respect of the same claim on successive occasions: see Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69 and Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd trading as Novatec Constructions Systems [2009] NSWSC 416 per Rein J.

3 In both Dualcorp and Perform (NSW), a claimant under the Act, dissatisfied with an adjudication determination, sought to re-agitate through the adjudication process a claim the same as one earlier adjudicated upon.

4 The present case is a little different because the first defendant seeks to re-agitate the same claim but only as part of an expanded one (“the second claim”).

5 I have concluded that the second claim cannot be legitimately agitated using the procedures under the Act because:

a even though it is not exactly the same as the earlier claim, a substantial and unseverable part of it has already been adjudicated, and the first defendant has exhausted its statutory entitlement to adjudication in respect of that part; and

b the repetitious use of the Act is in this case an abuse of process.

FACTUAL BACKGROUND

6 The plaintiff (“Client”) and the first defendant (“Consultant”) are parties to a written contract made on 30 July 2007 (“the contract”) under which the first defendant provides to the plaintiff project management services.

7 Clause 12 of the contract which is entitled “Delay and Extension of Time” is in the following terms:

“ 12.1 Performance of Services
The Consultant shall proceed with the work under the Contract with due expedition and without delay and in accordance with the Program (if any).
The Consultant shall use all reasonable endeavours to achieve Completion of the Services (except for those Services that are required to be performed after the Date for Completion ) by the Date for Completion .
12.2 Notice of Delay
When it becomes evident to a party that anything including an act or omission of the Client or an employee, other consultant, contractor or agent of the Client, may delay Completion of the Services , that party shall promptly notify the other party in writing with details of the possible delay and the cause (including the circumstances, the extent or likely extent of the delay and the effect on the performance of the Services .)
12.3 Client’s directions
The Client may direct the Consultant in what order and at what time the Services shall be performed. If the Consultant can reasonably comply with the direction the Consultant shall do so. If the Consultant cannot reasonably comply with the direction the Consultant shall so notify the C lient in writing, giving reasons. If compliance with the direction causes the Consultant to incur more or less cost than otherwise would have been incurred had the Consultant not been given the direction, the difference shall be valued pursuant to clause 11.4 as though the direction was a direction to vary the Services .
Nothing in this Clause 12 shall:
(a) oblige the Client to pay extra costs for delay or disruption which have already been included in the value of a variation, or any other payment under the Contract ; or
(b) limit the Client’s liability for damages for breach of Contract.
12.4 Revised Program
Within 10 business days after receipt of a written request from the Client, the Consultant shall submit an updated Program for the performance and Completion of the Services .”

8 Clause 11 is entitled “Directions and Variations”. Clause 11.4 provides as follows:

“11.4 Valuation of Variations
Unless otherwise agreed, the value of a variation shall be determined using the basis on which the fee and expenses are determined pursuant to Clause 13 except that if the fee or fee and expenses to be determined pursuant to Clause 13 is a lump sum, then reasonable rates and prices (which shall include an amount of not more than 10% for attendance, profit and overheads) shall apply.”

9 Clause 13 is entitled “Payment” and contains provisions for the vouching of a time and place for payments under the contract. It is not necessary for present purposes to set it out.

10 On 18 December 2008 the first defendant served a payment claim on the plaintiff (“the first claim”).

11 On 23 January 2009 the first defendant lodged an adjudication application in respect of the first claim.

12 On 19 February 2007 it withdrew the application and lodged another adjudication application in respect of the first claim.

13 The first claim comprised a number of separate claims each relating to a different project being managed by the first defendant for the plaintiff under the contract. The claims fell into three categories, namely a project fee adjustment, delay costs and variations. The total claim was $525,344 of which $266,390 was for delay costs.

14 The first payment claim annexed a delay schedule which specified the particular period of delay asserted in respect of each project. It claimed as an adjustment the hourly rate applicable to each employee of the first defendant multiplied by the hours comprising the delay period which that employee spent working on the project.

15 This application was submitted to an adjudicator, Mr Thomas Uher (“the adjudicator”), who on 10 March 2009 issued an adjudication determination, (“the previous adjudication”).

16 The previous adjudication found a nil balance due to the first defendant.

17 The present dispute concerns only the determination in respect of delay costs (referred to as Issue 3 in the previous adjudication).

18 The adjudicator found as follows:

“ Issue 3
It seems that Clause 12 of the General Conditions is the only term of the Contract that provides an entitlement to the Claimant for the cost of delay. Although Section 6 of the Brief states that, “ The adjustment to the fee for additional projects may also take into consideration the timing of such additional works” , I agree with the Respondent that it does not give rise to any entitlement to the cost of delay under Section 6 of the Brief or Clause 12 of the Contract.
My understanding of the mechanism of Clause 12 of the General Conditions is that a claim for the cost of delay would be triggered firstly by the Claimant notifying the Respondent in writing as required by Clause 12.2 with details of the possible delay and its likely impact on the Claimant in performing its project management services and secondly by the Respondent directing the Claimant pursuant to Clause 12.3 “in what order and at what time the Services shall be performed” . That Clause then states that, “If compliance with the direction causes the Consultant to incur more or less cost than otherwise would have been incurred had the Consultant not been given the direction, the difference shall be valued pursuant to Clause 11.4 as though the direction was a direction to vary the Services” . I agree with the Respondent that the direction referred to in Clause 12.2 seems to be related only to “in what order and at what time the Services shall be performed” .
In the Adjudication Application the Claimant says that ‘Notices of Delay’ (NOD) were issued to the Respondent pursuant to Clause 12.2 of the General Conditions. The Claimant has provided details of those NODs in the ‘Delay Schedule’. However, not a single copy of a NOD has been provided by the Claimant in its submission. The Respondent at [19.12] of the Adjudication Response denies ever receiving NODs from the Claimant under the Contract in respect of any of the projects in the Claimant’s scope of the works and that the only NODs received were those from the contractors under the relevant building contracts with the Respondent.
The Claimant has repeatedly asserted in its submission that it has been directed by the Respondent to proceed with the services and that in complying with such directions it has incurred additional costs for which it is now claiming. However, the Claimant has provided no evidence whatsoever of receiving any such directions and in the Adjudication Response at [19.7(b) & 19.18] the Respondent denies that any directions have been made.
In conclusion, the Claimant has not satisfied me that it complied with the requirements of Clause 12 of the General Conditions. In particular, the Claimant has provided no evidence that would satisfy me of the Claimant’s compliance with the requirements of Clause 12.2 and has provided no evidence that would satisfy me of actually receiving directions from the Respondent under Clause 12.3 from which the Claimant’s claim for the cost of delay allegedly arose. For those reasons, the claim must fail. Given the determinations made above, it is not necessary for me to deal with Issue 4 above.”

19 On 31 May 2009 the first defendant served the second claim. It claimed $515,317 of which $468,470 were delay costs. The balance was for variations.

20 Except in relation to one project, in the second claim, delay costs were reclaimed in respect of all periods of delay for which costs were claimed in the first claim, and more.

21 The following table illustrates the overlap of the first and second claims on a project by project basis. The first claim is referred to in the table as the December 2008 Payment Claim and is represented by the top hatched areas. The second claim is referred to in the table as the May 2009 Payment Claim and is represented by the bottom hatched areas. The difference in weeks appears in the left hand column. The claims in at least two of the projects are almost the same. It will be observed that the delays now asserted include periods before the original periods claimed for.

22 On 4 June 2009 the plaintiff served a payment schedule on the first defendant in which it asserted a nil balance payable in respect of delay costs claimed in the second claim.

23 On 18 June 2009 the first defendant made a second adjudication application seeking adjudication of the second claim.

24 It is the withdrawal of this adjudication application (the “present application”) which the plaintiff seeks, together with an injunction that it be restrained from seeking adjudication of the second claim.

25 In the present application the first defendant (referred to as the Claimant and Cadence) said this with respect to Issue 3:

“Issue 3: that the Claimant has provided no evidence of its compliance with clause 12 of the Contract and receipt of directions from the Respondent under clause 12.3 of the Contract. It is submitted that the claims/details attached as Attachment 4 to this Adjudication Application now provide this information.
For the foregoing reasons, Cadence has satisfied the reasons given in the earlier Adjudication Determination as to why the Adjudicator was unable to value this component of Cadence’s claim and there is now no reason why Cadence should not be paid the entire Claimed Amount.”

THE RELEVANT PROVISIONS OF THE ACT

26 Section 8 of the Act is in the following terms:

(1) On and from each reference date under a construction contract, a person:
(a) who has undertaken to carry out construction work under the contract, or
(b) who has undertaken to supply related goods and services under the contract,

is entitled to a progress payment.

(2) In this section, "reference date", in relation to a construction contract, means:
(a) a date determined by or in accordance with the terms of the contract as the date on which a claim for a progress payment may be made in relation to work carried out or undertaken to be carried out (or related goods and services supplied or undertaken to be supplied) under the contract, or
(b) if the contract makes no express provision with respect to the matter-the last day of the named month in which the construction work was first carried out (or the related goods and services were first supplied) under the contract and the last day of each subsequent named month.

27 Section 13 of the Act is in the following terms:

(1) A person referred to in section 8 (1) who is or who claims to be entitled to a progress payment (the "claimant") may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment.
(2) A payment claim:
(a) must identify the construction work (or related goods and services) to which the progress payment relates, and
(b) must indicate the amount of the progress payment that the claimant claims to be due (the "claimed amount"), and
(c) must state that it is made under this Act.
(3) The claimed amount may include any amount:
(a) that the respondent is liable to pay the claimant under section 27 (2A), or
(b) that is held under the construction contract by the respondent and that the claimant claims is due for release.
(4) A payment claim may be served only within:
(a) the period determined by or in accordance with the terms of the construction contract, or
(b) the period of 12 months after the construction work to which the claim relates was last carried out (or the related goods and services to which the claim relates were last supplied),
whichever is the later.
(5) A claimant cannot serve more than one payment claim in respect of each reference date under the construction contract.
(6) However, subsection (5) does not prevent the claimant from including in a payment claim an amount that has been the subject of a previous claim.

28 Section 14 of the Act is in the following terms:

(1) A person on whom a payment claim is served (the "respondent") may reply to the claim by providing a payment schedule to the claimant.
(2) A payment schedule:
(a) must identify the payment claim to which it relates, and
(b) must indicate the amount of the payment (if any) that the respondent proposes to make (the "scheduled amount").


(3) If the scheduled amount is less than the claimed amount, the schedule must indicate why the scheduled amount is less and (if it is less because the respondent is withholding payment for any reason) the respondent’s reasons for withholding payment.

(4) If:
(a) a claimant serves a payment claim on a respondent, and
(b) the respondent does not provide a payment schedule to the claimant:
(i) within the time required by the relevant construction contract, or
(ii) within 10 business days after the payment claim is served,
whichever time expires earlier,
the respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment to which the payment claim relates.

29 Section 15 of the Act is in the following terms:

(1) This section applies if the respondent:
(a) becomes liable to pay the claimed amount to the claimant under section 14 (4) as a consequence of having failed to provide a payment schedule to the claimant within the time allowed by that section, and
(b) fails to pay the whole or any part of the claimed amount on or before the due date for the progress payment to which the payment claim relates.

(2) In those circumstances, the claimant:
(a) may:
(i) recover the unpaid portion of the claimed amount from the respondent, as a debt due to the claimant, in any court of competent jurisdiction, or
(ii) make an adjudication application under section 17 (1) (b) in relation to the payment claim, and
(b) may serve notice on the respondent of the claimant’s intention to suspend carrying out construction work (or to suspend supplying related goods and services) under the construction contract.


(3) A notice referred to in subsection (2) (b) must state that it is made under this Act.

(4) If the claimant commences proceedings under subsection (2) (a) (i) to recover the unpaid portion of the claimed amount from the respondent as a debt:
(a) judgment in favour of the claimant is not to be given unless the court is satisfied of the existence of the circumstances referred to in subsection (1), and
(b) the respondent is not, in those proceedings, entitled:
(i) to bring any cross-claim against the claimant, or
(ii) to raise any defence in relation to matters arising under the construction contract.

30 Section 17 of the Act is in the following terms:

(1) A claimant may apply for adjudication of a payment claim (an "adjudication application") if:
(a) the respondent provides a payment schedule under Division 1 but:
(i) the scheduled amount indicated in the payment schedule is less than the claimed amount indicated in the payment claim, or
(ii) the respondent fails to pay the whole or any part of the scheduled amount to the claimant by the due date for payment of the amount, or
(b) the respondent fails to provide a payment schedule to the claimant under Division 1 and fails to pay the whole or any part of the claimed amount by the due date for payment of the amount.

(2) An adjudication application to which subsection (1) (b) applies cannot be made unless:
(a) the claimant has notified the respondent, within the period of 20 business days immediately following the due date for payment, of the claimant’s intention to apply for adjudication of the payment claim, and
(b) the respondent has been given an opportunity to provide a payment schedule to the claimant within 5 business days after receiving the claimant’s notice.

(3) An adjudication application:
(a) must be in writing, and
(b) must be made to an authorised nominating authority chosen by the claimant, and
(c) in the case of an application under subsection (1) (a) (i)-must be made within 10 business days after the claimant receives the payment schedule, and
(d) in the case of an application under subsection (1) (a) (ii)-must be made within 20 business days after the due date for payment, and
(e) in the case of an application under subsection (1) (b)-must be made within 10 business days after the end of the 5-day period referred to in subsection (2) (b), and
(f) must identify the payment claim and the payment schedule (if any) to which it relates, and
(g) must be accompanied by such application fee (if any) as may be determined by the authorised nominating authority, and
(h) may contain such submissions relevant to the application as the claimant chooses to include.


(4) The amount of any such application fee must not exceed the amount (if any) determined by the Minister.

(5) A copy of an adjudication application must be served on the respondent concerned.

(6) It is the duty of the authorised nominating authority to which an adjudication application is made to refer the application to an adjudicator (being a person who is eligible to be an adjudicator as referred to in section 18) as soon as practicable.

31 Section 22 of the Act is in the following terms:

(1) An adjudicator is to determine:
(a) the amount of the progress payment (if any) to be paid by the respondent to the claimant (the "adjudicated amount"), and
(b) the date on which any such amount became or becomes payable, and
(c) the rate of interest payable on any such amount.

(2) In determining an adjudication application, the adjudicator is to consider the following matters only:
(a) the provisions of this Act,
(b) the provisions of the construction contract from which the application arose,
(c) the payment claim to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the claimant in support of the claim,
(d) the payment schedule (if any) to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the respondent in support of the schedule,
(e) the results of any inspection carried out by the adjudicator of any matter to which the claim relates.

(3) The adjudicator’s determination must:
(a) be in writing, and
(b) include the reasons for the determination (unless the claimant and the respondent have both requested the adjudicator not to include those reasons in the determination).

(4) If, in determining an adjudication application, an adjudicator has, in accordance with section 10, determined:
(a) the value of any construction work carried out under a construction contract, or
(b) the value of any related goods and services supplied under a construction contract,

the adjudicator (or any other adjudicator) is, in any subsequent adjudication application that involves the determination of the value of that work or of those goods and services, to give the work (or the goods and services) the same value as that previously determined unless the claimant or respondent satisfies the adjudicator concerned that the value of the work (or the goods and services) has changed since the previous determination.

(5) If the adjudicator’s determination contains:
(a) a clerical mistake, or
(b) an error arising from an accidental slip or omission, or
(c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the determination, or
(d) a defect of form,
the adjudicator may, on the adjudicator’s own initiative or on the application of the claimant or the respondent, correct the determination.

THE PARTIES’ SUBMISSIONS

32 The plaintiff submitted that the second claim makes claims which are subject to an issue estoppel (which it described in submissions as a “procedural estoppel”), and that the first defendant’s repetitious use of the Act is an abuse of process which should be restrained.

33 As to issue estoppel, the first defendant firstly submitted that the majority holding in Dualcorp on the applicability of issue estoppel to adjudication determinations under the Act was obiter dictum because the Court of Appeal was called on to decide only if the District Court had been correct in refusing summary judgment. It was submitted that I am not bound to, and should not, follow it.

34 Secondly, it was put that this case is distinguishable from Dualcorp because “issues” are raised in the second claim which were not raised in the first claim, whereas in Dualcorp, the two claims were identical. It was put that issues already dealt with are to be treated as an earlier valuation and s 22(4) applies to them, but that s 22(4) does not shut out the issues raised only in the second claim for the first time.

35 Thirdly, it was put that if the principles of issue estoppel apply, no issue estoppel preventing the second payment claim was created by the previous adjudication because the adjudicator did not determine that the first defendant did not have a claim for the delay costs in question but rather determined simply that there was a lack of evidence to support it. In support of this submission reliance was placed on the statement on Fullagar J in Brewer v Brewer & Anor (1953) 88 CLR 1 at 15-16 to the following effect:

“There is no estoppel as to evidentiary facts found in the course of determining the affirmative or negative of an issue. There is nothing to prevent a party from tendering in a later proceeding in relation to a particular issue facts negatived in an earlier proceeding when they were tendered in relation to a different issue. In Blair v. Curran (1939) 62 CLR 464, at p 532 , Dixon J. said: - "In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action. . . . Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion".

36 Finally, on issue estoppel, it was put that if the first claim failed because of a lack of evidence, it could be brought again and to do so would not be an abuse of process, and nothing would have operated to deprive the adjudicator of jurisdiction to re-adjudicate it.

37 With respect to abuse of process it was put that the present circumstances are distinguishable from those considered in Dualcorp because there a second payment claim was served in respect of the same reference date as an earlier payment claim, whereas the second claim is in respect of a later reference date, and is therefore not contrary to the prohibition in s 13(5) of the Act.

THE LAW

38 In Dualcorp Allsop P considered that ss 13(5), (6) and 22(4) inhibit repetitious use of the Act in respect of the same claim.

39 I would, with respect, add s 13(1). That section gives a person claiming to be entitled to a progress payment (the claimant) the statutory right to serve “a payment claim” under the construction contract on the person who is or may be liable to make the payment and s 17 affords the person the statutory right to have that payment claim adjudicated. Together these provisions afford only one such opportunity and when it is availed of and completed, the statutory entitlement has been exhausted.

40 In the present case s 22(4) of the Act does not, in terms, apply because by the previous adjudication the adjudicator did not determine the value of the delay cost claim. He rejected it because it had not been established on the evidence.

41 In Dualcorp a judge of the District Court had declined to enter summary judgment in favour of a claimant on the basis that the claim involved impermissible repetitious use of the Act.

42 In concluding that the appeal should be dismissed, Macfarlan JA (with whom Handley AJA agreed) said at [68]:

“Thus the primary judge here was correct in considering that “principles akin to res judicata” or “abuse of process” were applicable. Consistent with that broad description, I conclude that the principles of issue estoppel were applicable. Primarily because temporal considerations are of particular significance in relation to progress claims, the analogy between an adjudicator’s determination and a completed cause of action which the principles of res judicata would require is an incomplete one. It is best that the applicable principles be recognised to be those of issue estoppel. The more general principle of abuse of process is probably also applicable but it is unnecessary to reach a final view about this. This principle involves a broad concept “insusceptible of a formulation comprising closed categories” ( Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at [9]) but certainly including within its ambit an attempt to “litigate anew a case which has formerly been disposed of by earlier proceedings” ( Walton v Gardiner [1993] HCA 77; (1992-3) 177 CLR 378 at 393).”

43 Allsop P did not join in this finding with respect to the applicability of principles of issue estoppel. His Honour said at [16]:

“I would leave to another occasion, should it be necessary, the consideration of principles of estoppel to prevent any apparently abusive operation of the Act not specifically covered by ss 13(5) and 22(4).”

44 An abuse of process occurs when a legal process available to a party is used for a purpose, which in the eye of the law, it is not intended to serve: see Williams & Ors v Spautz (1992) 174 CLR 509.

45 In Dualcorp Macfarlan JA said, as is referred to above, that the more general principle of abuse of process was probably also applicable but His Honour found it unnecessary finally to decide.

CONSIDERATION

46 I have significant doubt that the majority holding in Dualcorp on issue estoppel is obiter so far as it determines that the doctrine of issue estoppel is capable of applying to adjudication determinations under the Act. The majority considered that an adjudication determination under the Act satisfies the requirement of finality referred to by the High Court in Kuligowski v Metrobus (2004) 220 CLR 363 at 373-4, even though an adjudication could not bring about a res judicata, and an adjudicator does not possess jurisdiction to decide any matter conclusively and for all purposes between the parties: cf Ex parte The Amalgamated Engineering Union (Australian Section); Re Jackson & Anor (1937) 38 SR (NSW) 13 at 19 per Jordan CJ.

47 In these circumstances if I had considered that the form of the previous adjudication gave rise to an issue estoppel, I would in likelihood have taken the view that it would have been for someone other than a first instance judge to express the view that the majority in Dualcorp is clearly wrong. However for reasons which immediately follow, I do not consider that the particular findings in the previous adjudication give rise to an issue estoppel to the effect that the first defendant does not have a valid claim for delay costs under the contract. It is therefore not necessary for me further to consider the submission that I should not follow Dualcorp with respect to the applicability of issue estoppel.

48 In my view the previous adjudication did not establish that the first defendant has no claim for delay costs under the contract. It established that the first defendant had not adduced evidence which made out such a claim.

49 The first defendant can undoubtedly sue in the ordinary course in a court of law and prove its claim there.

50 I consider the submission by the first defendant that the particular form of finding which the adjudicator made is of the type referred to by Fullagar J in Brewer v Brewer, to be well founded.

51 But that is not the end of the matter. In my view the first defendant has exhausted its statutory entitlement to claim the delay costs which were the subject of the first claim.

52 The terms of the present application make it clear that the first defendant having failed to substantiate its claim for delay costs wishes to re-agitate it on the basis that the “claims/details attached as Attachment 4 to the Adjudication Application now provide this information”.

53 The fact that it claims costs for periods of delay beyond those earlier claimed for does not detract from the fact that it is, as Allsop P in Dualcorp at [2] described, seeking “…to re-ignite the adjudication process at will in order to have a second or third or fourth go at the process provided by the Act merely because it is dissatisfied with the result of the first adjudication.”

54 Section 13(6) of the Act does not overcome this problem for the first defendant. The section does not in my view have in contemplation a payment claim for an amount which has previously been claimed and which has been adjudicated upon and rejected.

55 The second claim and the present application accordingly have as their object the obtaining of an advantage beyond what the law offers and together they are an abuse of process.

56 In addition, given that the Act gives no right to re-make a payment claim which has earlier been made and adjudicated upon, the second claim, to the extent that it seeks to do so is not a payment claim within the meaning of the Act. It may be that where there is duplication of a part but not the whole of an earlier claim, whether there is sufficient duplication to fairly take a second claim outside the definition of payment claim is a matter of fact and degree. If it is, that requirement is clearly satisfied here by reason of the significant degree of overlap. No one suggested that it was possible or feasible for the adjudicator to deal with only part of the present application. Dealing with the present application would require the adjudicator to re-perform a statutory function which he has already discharged. It follows that the first defendant has no right to apply for the adjudication of the second claim and, contrary to what the first defendant put, the second defendant has no jurisdiction to adjudicate it.

57 It was submitted that whether the second payment claim should be adjudicated upon should be left to the second defendant. Given the second defendant’s lack of jurisdiction, this submission is unsustainable.

58 Leaving lack of jurisdiction aside, a similar submission was put to and dealt with by Rein J in Perform (NSW).

59 His Honour pointed out, amongst other things, that the remedy for abuse of process is a dismissal or permanent stay of the proceedings and there is no mechanism for such an application before an adjudicator, that the respondent should not be vexed with a fresh process when it ought not to be, and that the intent of the Act is to provide a speedy determination of claims for payment on an interim basis, not to burden the parties to a construction contract with a prolonged quasi-judicial process.

60 Similar considerations favouring the intervention of the Court to restrain the second claim and the present application apply here.

CONCLUSION

61 The second claim and the present application should not be permitted to go forward and there should be orders to prevent them from doing so.

62 No submissions were directed on behalf of the first defendant in opposition to the form of the orders sought by the plaintiff in the event that it was successful. Accordingly there shall be the following orders:

a the first defendant is to withdraw the adjudication application dated 18 June 2009;

b the first defendant is restrained from seeking adjudication of the payment claim dated 31 May 2009; and

c the first defendant is to pay the plaintiff’s costs of the proceedings.

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