Quasar Constructions v Demtech Pty Ltd

[2004] NSWSC 116

Supreme Court of NSW

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Certiorari
4. › Adjudicator's determination under Building and Construction Industry Security of Payment Act 1999 (NSW)
5. › Jurisdictional error
6. › Whether adjudicator performed statutory task
7. › Whether awarding unpaid balance of lump sum price as progress payment where contract terminated and work incomplete constituted jurisdictional error
8. › Supreme Court Act 1970 (NSW), s 69(1)
1. Building and Construction Law
2. › Security of payment legislation
3. › Progress payments
4. › Meaning of 'progress payment'
5. › Whether unpaid balance of lump sum contract price where work incomplete is a 'progress payment'
6. › Whether 'progress payment' requires payment referable to work actually carried out
7. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 4, 8, 9, 10
1. Building and Construction Law
2. › Security of payment legislation
3. › Adjudication
4. › Calculation of progress payment amount
5. › Lump sum contract with no provision for progress payments
6. › Whether ss 8(2)(a), 9(a) and 10(1)(a) or ss 8(2)(b), 9(b) and 10(1)(b) apply
7. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 9, 10
1. Statutes
2. › Interpretation
3. › Definition clauses
4. › Context or subject matter otherwise indicating or requiring different meaning
5. › Whether statutory definition of 'progress payment' displaced by context
6. › Interpretation Act 1987 (NSW), s 6

Quick Take

Under the Building and Construction Industry Security of Payment Act 1999 (NSW), a 'progress payment' must be referable to construction work actually carried out. Where a lump sum contract has been terminated with work incomplete, an adjudicator cannot award the unpaid balance of the full contract price; the adjudicator must instead value the work actually done under ss 9(b) and 10(1)(b). The concept of 'progress payment' does not extend to damages for breach of contract or loss of the opportunity to earn the full contract price.