Clyde Bergemann v Varley Power

[2011] NSWSC 1039

Supreme Court of NSW

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Interrogate

Catchwords

1. Building and Construction
2. › Security of payment legislation
3. › Adjudication
4. › Judicial review
5. › Jurisdictional error
6. › Whether s 9(a) of the Act is a jurisdictional requirement
7. › Whether misconstruction of contractual provisions constitutes jurisdictional error
8. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 9(a), 22
1. Building and Construction
2. › Security of payment legislation
3. › Adjudication
4. › Natural justice and procedural fairness
5. › Good faith
6. › Whether adjudicator failed to afford natural justice by not identifying material not drawn to his attention by parties
7. › Obligation to consider under s 22(2)
8. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 20(2B), 22(2), 22(3)
1. Administrative Law
2. › Jurisdictional error
3. › Distinction between jurisdictional and non-jurisdictional error of law
4. › Statutory requirements anterior to decision-making process versus matters arising during decision-making process
5. › Building and Construction Industry Security of Payment Act 1999 (NSW), s 9(a)

Quick Take

Section 9(a) of the Building and Construction Industry Security of Payment Act 1999 (NSW) is not a jurisdictional requirement; an adjudicator's misconstruction or misapplication of contractual provisions in calculating a progress payment is an error within jurisdiction, not amenable to judicial review for jurisdictional error. The obligation of good faith and natural justice must be assessed having regard to the magnitude of the task and the way the parties have framed the dispute; a party that fails to draw the adjudicator's attention to relevant material in voluminous documentation cannot complain that the adjudicator failed to deal with that material.