Watpac Constructions v Austin Corp

[2010] NSWSC 168

Supreme Court of NSW

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Catchwords

1. Building and Construction
2. › Security of payment legislation
3. › Adjudication determinations
4. › Validity of second adjudication determination
5. › Where payment claim includes amounts the subject of previous adjudication determination
6. › Whether valid payment claim
7. › Whether subsequent claim precluded by issue estoppel
8. › Whether abuse of process
9. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 13, 22, 34
1. Estoppel
2. › Issue estoppel
3. › Application to adjudication determinations under security of payment legislation
4. › Extended principle (Anshun estoppel)
5. › Whether extended principle applies to adjudication determinations
6. › Whether unreasonable not to raise alternative basis for claim in earlier adjudication
1. Practice and Procedure
2. › Abuse of process
3. › Repetitious use of statutory adjudication process
4. › Re-agitation of claims previously adjudicated and rejected
5. › Whether abuse of processes established by the Act
1. Administrative Law
2. › Natural justice
3. › Procedural fairness in statutory adjudication
4. › Adjudicator deciding issue on basis not raised by either party
5. › Whether substantial denial of natural justice
6. › Materiality of denial
7. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 22, 34

Quick Take

The extended (Anshun) principle of issue estoppel applies to adjudication determinations under the Building and Construction Industry Security of Payment Act 1999 (NSW), so that a party is precluded from re-agitating a claim on a different legal basis in a subsequent adjudication where that basis could and should have been raised in the earlier adjudication. The issue determined by an adjudicator is the claimant's entitlement to the progress payment claimed, not merely the specific legal basis on which the claim was advanced. An adjudicator who decides a set-off issue on the basis of s 34 (no contracting out) without giving the parties an opportunity to make submissions on that point commits a material denial of natural justice. The question whether a determination affected by denial of natural justice in relation to a discrete part of the claim is wholly or only partially void was left open.