PPK Willoughby v Eighty Eight Construction

[2014] NSWSC 760

Supreme Court of NSW

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Interrogate

Catchwords

1. BUILDING AND CONSTRUCTION - building contracts - Adjudication determinations - whether adjudicator's determination is void for failure to exercise the power given to him under the Building and Construction Industry Security of Payments Act - whether adjudicator abrogated power by accepting the valuation assessed by the Superintendent
1. BUILDING AND CONSTRUCTION - Building contracts - Certification of progress claims - whether Superintendent had power to issue payment certificate at the time that he did - meaning of 'business day' where undefined in Contract - whether 'business day' means 'working day' - whether Superintendent issued payment certificate prior to last business day of the month

Quick Take

The Court held that an adjudicator did not fail to exercise statutory power under the Security of Payment Act by accepting the Superintendent's valuation of construction work where that valuation was effectively agreed between the parties and the real dispute concerned entitlement to set off for defective work, not the valuation itself. The Court also held that 'business day' in AS 4300-1995 (where undefined) means a day when business is generally carried on, excluding Saturdays, Sundays and public holidays, and does not mean 'working day' tied to whether site work is being performed; consequently, the Superintendent's payment certificate issued on 23 December 2013 was premature and a nullity because the last business day of December had not yet passed. The Court emphasised that adjudicators' reasons must be read as a whole and not parsed with a fine-tooth comb for verbal infelicities.