Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd & Anor

(2009) 26 VR 112; [2009] VSC 156

Supreme Court of Victoria

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Interrogate

Catchwords

1. Building and Construction
2. › Security of payment legislation
3. › Adjudication determination
4. › Validity of determination
5. › Essential pre-conditions for valid determination
6. › Whether non-compliance with procedural requirements renders determination void
7. › Building and Construction Industry Security of Payment Act 2002 (Vic), ss 14, 18, 23, 28R
1. Building and Construction
2. › Security of payment legislation
3. › Payment claim
4. › Requirements for valid payment claim
5. › Whether two tax invoices in same envelope constitute single payment claim
6. › Whether claim repeating items from previous unpaid claims is valid
7. › Building and Construction Industry Security of Payment Act 2002 (Vic), ss 14(2), 14(8), 14(9)
1. Building and Construction
2. › Security of payment legislation
3. › Adjudication application
4. › Time for making application
5. › Whether application may be made by email
6. › When electronic application is 'made'
7. › Building and Construction Industry Security of Payment Act 2002 (Vic), s 18(3)(c)
1. Administrative Law
2. › Judicial review
3. › Privative clauses
4. › Hickman principle
5. › Application to security of payment legislation
6. › Whether certiorari available to challenge adjudication determination
7. › Constitution Act 1975 (Vic), s 85
8. › Building and Construction Industry Security of Payment Act 2002 (Vic), s 28R(5)(a)

Quick Take

In Victoria, certiorari is available to challenge adjudication determinations under the Building and Construction Industry Security of Payment Act 2002 (Vic), because s 85 of the Constitution Act 1975 (Vic) preserves the Supreme Court's jurisdiction and the Act does not contain a s 85 statement excluding judicial review of determinations. However, the threshold for invalidity remains that stated in Brodyn: only non-compliance with basic and essential requirements intended by the legislature as pre-conditions to a valid determination will render a determination void. Detailed procedural requirements of ss 14 and 18 are generally matters for the adjudicator to determine. Adjudication applications may validly be made by email, with the application treated as 'made' when it arrives at the nominating authority's server.