1155 Nepean Highway Pty Ltd v Promax Buildings Pty Ltd

[2020] VSCA 253

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Adjudicator's determination
4. › Building and Construction Industry Security of Payment Act 2002 (Vic)
5. › Whether adjudicator drew impermissible adverse inference from absence of adjudication response
6. › Whether permissible to draw adverse inference from failure to provide payment schedule
7. › ss 15(4), 18(2)(b), 21(2A), 23
1. Administrative Law
2. › Judicial review
3. › Adjudicator's determination
4. › Building and Construction Industry Security of Payment Act 2002 (Vic)
5. › Whether adjudicator failed to conduct independent assessment of payment claim
6. › Reliance on builder's trade summary
7. › Brevity of reasons
8. › ss 11, 22(4), 23
1. Administrative Law
2. › Judicial review
3. › Adjudicator's determination
4. › Building and Construction Industry Security of Payment Act 2002 (Vic)
5. › Meaning of 'provisions of the construction contract'
6. › Whether documents incorporated by reference are 'provisions'
7. › Whether contract drawings required to be considered
8. › s 23(2)(b)
1. Evidence
2. › Inferences
3. › Adverse inferences
4. › Jones v Dunkel inference
5. › Whether inference available where party statutorily precluded from adducing evidence
6. › Distinction between voluntary and involuntary silence

Quick Take

Under the Building and Construction Industry Security of Payment Act 2002 (Vic), an adjudicator may draw an adverse inference from a respondent's failure to provide a payment schedule, but not from the absence of an adjudication response where the respondent is statutorily barred from lodging one under s 21(2A). The expression 'provisions of the construction contract' in s 23(2)(b) refers to the provisions of the contract document itself and does not extend to documents incorporated by reference (such as contract drawings); accordingly, an adjudicator's failure to consider such incorporated documents does not render the determination void under s 23(2B).