John Oppedisano v Systems Pty Limited (ACN 125 225 443)

[2012] NSWSC 53

Supreme Court of NSW

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1. BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) — whether contract was one for the carrying out of residential building work for the purposes of s 7(2)(b) — whether, had s 7(2)(b) been found to apply, relief in the nature of certiorari should be withheld on discretionary grounds.

Quick Take

The Court held that where a construction contract related to premises comprising four separate self-contained units and the owner resided in only one, the contract was not one for residential building work 'on such part of any premises as the party resides in' under s 7(2)(b) of the Security of Payment Act, and accordingly the Act applied and the adjudicator had jurisdiction. Applying Shorten v David Hurst Constructions, the scope of the works under the contract must relate only to the part of the premises in which the respondent resides or proposes to reside for the exclusion to operate. The Court also indicated, in obiter, that even had jurisdictional error been established, it would have been strongly inclined to withhold certiorari as a matter of discretion where the owner knew the relevant facts but failed to raise the s 7(2)(b) point in either the payment schedule or adjudication response.