Olympia Group (NSW) Pty Ltd v Hansen Yuncken Pty Ltd & Anor

[2011] NSWSC 165

Supreme Court of NSW

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Interrogate

Catchwords

1. BUILDING AND CONSTRUCTION CONTRACTS — Building and Construction Industry Security of Payment Act 1999 (NSW) — whether a decision by an adjudicator who does not have jurisdiction was a determination under s 22 — whether entitled to submit new claim under s 17 — whether adjudicator had jurisdiction to determine claim — whether construction work carried out outside NSW

Quick Take

The Court held that an adjudicator's decision that he or she lacks jurisdiction under the SOP Act is not a 'determination' within s 22, and consequently the claimant is entitled under s 26(2) to withdraw the application and make a new adjudication application. However, the Court also held that the SOP Act does not apply to a construction contract for work to be performed in the Jervis Bay Territory (which is governed by ACT law), even where related goods and services were sourced and partly fabricated in NSW, because s 7(4)(b) excludes related goods and services supplied in respect of construction work carried out outside NSW. The amended summons was therefore dismissed because, although the claimant had a right to make a fresh application, no adjudicator would have jurisdiction to determine the claim.