Perform (NSW) Pty Ltd v MEV-AUS Pty Ltd & Anor

[2009] NSWCA 157

NSW Court of Appeal

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Interrogate

Catchwords

1. Building and Construction
2. › Security of payment legislation
3. › Adjudication
4. › Payment schedule
5. › Indication of reasons for withholding payment
6. › Whether payment schedule may indicate reasons by reference to previous payment schedule
7. › Whether incorporation by reference permitted under s 14(3)
8. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 14(3), 20(2B), 22(2)
1. Building and Construction
2. › Security of payment legislation
3. › Adjudication
4. › Validity of determination
5. › Basic and essential requirements
6. › Whether adjudicator's error in construction of Act renders determination void
7. › Whether correct construction of s 14(3) is essential precondition for valid determination
8. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 14(3), 22(2)
1. Building and Construction
2. › Security of payment legislation
3. › Adjudication
4. › Natural justice
5. › Whether denial of natural justice in excluding regard to previous payment schedule
6. › Whether denial of natural justice in refusing to allow backcharge claims as set-off
7. › Whether adjudicator required to warn of change in provisional view
8. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 21(4), 22(2)
1. Building and Construction
2. › Security of payment legislation
3. › Adjudication
4. › Bona fide exercise of powers
5. › Whether adjudicator failed to make bona fide attempt to exercise statutory power
6. › Standard for establishing lack of good faith

Quick Take

A payment schedule under s 14(3) of the Building and Construction Industry Security of Payment Act 1999 (NSW) may 'indicate' reasons for withholding payment by reference to a previous payment schedule or prior correspondence, provided the reference is sufficiently clear to inform the recipient. However, even if an adjudicator incorrectly excludes such material, the error does not invalidate the determination because what a payment schedule indicates is a matter for the adjudicator, not for objective determination by a court. Allegations of lack of bona fide exercise of powers should not lightly be made against adjudicators and require more than mere error of law.