John Holland Pty. Limited v Roads & Traffic Authority of New South Wales & Ors.

[2007] NSWCA 19

NSW Court of Appeal

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Catchwords

1. Building and Engineering Contracts
2. › Progress payments
3. › Security of payment legislation
4. › Adjudication
5. › Payment schedule
6. › Reasons for withholding payment
7. › Whether jurisdiction submissions are reasons for withholding payment
8. › Whether submissions not in payment schedule are 'duly made'
9. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 14(3), 20(2B), 22(2)(d)
1. Building and Engineering Contracts
2. › Progress payments
3. › Security of payment legislation
4. › Adjudication
5. › Adjudicator's obligation to consider submissions
6. › Whether adjudicator required to consider submissions under ss 22(2)(a) or (b)
7. › Threshold of awareness and belief in relevance
8. › Building and Construction Industry Security of Payment Act 1999 (NSW), s 22(2)(a), (b)
1. Building and Engineering Contracts
2. › Progress payments
3. › Security of payment legislation
4. › Adjudication
5. › Validity of adjudicator's determination
6. › Whether failure to consider submissions invalidates determination
7. › Bona fide attempt to exercise power
8. › Natural justice
9. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 22(2), 25(4), 30
1. Building and Engineering Contracts
2. › Progress payments
3. › Security of payment legislation
4. › Amount of progress payment
5. › Calculation in accordance with terms of contract
6. › Whether limited to amount determined by contractual mechanisms or calculated on criteria established by contract
7. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 9(a), 10(1)(a)

Quick Take

Submissions characterised as going to the adjudicator's jurisdiction are 'reasons for withholding payment' under s 20(2B) of the Building and Construction Industry Security of Payment Act 1999 (NSW) and must be included in the payment schedule to be 'duly made' under s 22(2)(d). An adjudicator is only required to consider matters under ss 22(2)(a) or (b) that are not 'duly made' if the adjudicator is both aware of them and believes they are of real relevance. An accidental or erroneous failure to consider a particular submission does not invalidate a determination so long as the specified classes of consideration under s 22(2) are addressed.