Pines Living Pty Ltd v O'Brien and Walton Construction Pty Ltd

[2013] ACTSC 156

Supreme Court of the ACT

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Interrogate

Catchwords

1. Building and Construction
2. › Security of payment legislation
3. › Payment claims
4. › Repeat claims
5. › Whether subsequent payment claim may include amounts previously claimed
6. › Whether s 15(6) permits inclusion as part of statutory claim or merely as reference
7. › Building and Construction Industry (Security of Payment) Act 2009 (ACT), ss 15(5), 15(6), 24(4)
1. Building and Construction
2. › Security of payment legislation
3. › Adjudication
4. › Jurisdictional error
5. › Whether claimant required to elect between enforcement of earlier claim and pursuit of later claim
6. › Whether suspension of work under earlier claim precludes adjudication of later claim
7. › Building and Construction Industry (Security of Payment) Act 2009 (ACT), ss 17, 26, 29
1. Building and Construction
2. › Security of payment legislation
3. › Adjudication
4. › Treatment of liquidated damages and defects
5. › Whether adjudicator erred in law in rejecting respondent's claims for set-off
6. › Building and Construction Industry (Security of Payment) Act 2009 (ACT), ss 11, 12, 24
1. Administrative Law
2. › Judicial review
3. › Certiorari
4. › Supervisory jurisdiction of Supreme Court
5. › Whether supervisory jurisdiction entrenched in ACT by s 48A of Australian Capital Territory (Self-Government) Act 1988 (Cth)
6. › Whether s 43(1) of SOP Act can exclude review for non-jurisdictional error of law

Quick Take

Under s 15(6) of the Building and Construction Industry (Security of Payment) Act 2009 (ACT), a subsequent payment claim may include amounts previously claimed as part of the statutory claim (not merely as a reference), thereby enlivening the adjudication process for those amounts, subject to issue estoppel. A claimant who has suspended work under an earlier payment claim is not precluded from making and enforcing a later claim including the same amounts. The ACT Supreme Court's supervisory jurisdiction over SOP Act adjudicators is entrenched by s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth). Whether s 48A prevents the Territory legislature from excluding review for non-jurisdictional error of law on the face of the record remains an open question.