Dualcorp Pty Ltd v Remo Constructions Pty Ltd

(2009) 74 NSWLR 190; [2009] NSWCA 69

NSW Court of Appeal

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Interrogate

Catchwords

1. Contracts
2. › Building and construction
3. › Security of payment legislation
4. › Payment claims
5. › Whether claimant may serve successive identical payment claims in respect of same reference date
6. › Whether s 13(5) prohibits second payment claim
7. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 13(5), 13(6), 22(4)
1. Estoppel
2. › Issue estoppel
3. › Adjudicators' determinations
4. › Whether adjudicator's determination under security of payment legislation sufficiently final and judicial to attract issue estoppel
5. › Whether legislative scheme manifests intention to confer finality on determinations
6. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 22, 25, 32
1. Practice and Procedure
2. › Abuse of process
3. › Re-litigation of issues previously determined
4. › Whether attempt to relitigate adjudicated claim constitutes abuse of process
1. Contracts
2. › Building and construction
3. › Security of payment legislation
4. › Defences to judgment proceedings
5. › Whether defence of issue estoppel is a matter 'arising under the construction contract' within s 15(4)(b)
6. › Building and Construction Industry Security of Payment Act 1999 (NSW), s 15(4)(b)

Quick Take

Adjudicators' determinations under the Building and Construction Industry Security of Payment Act 1999 (NSW) are final and binding between the parties as to the issues determined, attracting the principles of issue estoppel. A claimant dissatisfied with an adjudication cannot serve a further identical payment claim to obtain a redetermination. Section 13(5) operates as a prohibition such that a purported payment claim in respect of the same reference date as a previous claim is not a valid payment claim under the Act. Section 22(4) is not exhaustive of the binding effect of earlier determinations; all issues resolved by an adjudicator (including questions of entitlement, not just valuation) are binding in subsequent adjudications.