Leighton v Arogen

[2012] NSWSC 1323

Supreme Court of NSW

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Catchwords

1. [ADMINISTRATIVE LAW] — Building and Construction Industry Security of Payment Act 1999 (NSW) — application to restrain enforcement of, and to quash, a determination of an adjudicator — whether adjudicator materially denied parties natural justice by permitting the defendant to advance its claim in a way the plaintiff was not able to answer — whether adjudicator acted outside jurisdiction — whether adjudicator's determination void — whether adjudicator erred in his approach to the application of s 20(2B) and 22(2)(c) of the Building and Construction Industry Security of Payment Act 1999 (NSW).

Quick Take

The Court held that an adjudicator committed jurisdictional error and denied natural justice by permitting a claimant to advance variation claims in its adjudication application on a fundamentally different basis (excusable delay due to inclement weather) from that stated in the payment claim (delay due to heritage issues and a stop work order), and then using s 20(2B) to bar the respondent from raising contractual defences to the reformulated claims. The Court also held that the adjudicator's erroneous application of s 20(2B) to exclude the respondent's supporting calculations — which were in fact attached to the payment schedule — constituted a further denial of natural justice, and that the adjudicator's bare statement of satisfaction as to quantum without any reasoning constituted a failure to comply with the obligation to give reasons under s 22(3)(b), amounting to jurisdictional error.