ABACUS V DAVENPORT & ORS [2003] NSWSC 1027
Supreme Court of New South Wales – 14 November 2003
FACTS
Abacus engaged Renascent to carry out refurbishment of Abacus’ premises at 109 Pitt Street, Sydney. Renascent served on Abacus a Payment Claim under the Building and Construction Industry Security of Payment Act 1999 (‘the Act’) for $1,750,844.48. Abacus responded with a Payment Schedule under the Act and was accompanied with a progress certificate from the Architect approving $372,038.32. Abacus proposed to pay that approved amount.
Renascent was dissatisfied with the response and Mr. Davenport nominated and accepted as the Adjudicator.
Mr. Davenport determined that Renascent was entitled to $819,796.32 made up of the approved amount, variations, on-site costs and backcharges.
Abacus then sought relief to quash Mr. Davenport’s determination on the grounds that Mr. Davenport had committed errors of law on the face of the record. Abacus submitted that Mr. Davenport was bound by the terms of progress certificate issued by the architect and that Mr. Davenport had determined “a delay claim that was never made”. Abacus also sought an order to restrain Renascent from obtaining an adjudication certificate. Abacus relied upon Musico v Davenport [2003] NSWSC 977 to asset that relief does in fact lie in principle. Renascent submitted that there was no jurisdictional error and that if there was errors of law they were errors within jurisdiction.
ISSUES
In principle, does relief lie to quash the determination of an adjudicator under the Act?
If yes, on what grounds will that relief lie?
If yes, are any grounds for relief made out on the facts of the case?
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