Broad Construction Services (NSW) Pty Limited v Michael Vadasz trading as Australasian Piling Co & Ors  NSWSC 1057
(21 August 2008)
The plaintiff (Broad Construction Services (NSW) Pty Ltd) (“the Plaintiff”) and the first defendant Michael Vadasz trading as Australasian Piling Co (“the Defendant”) entered into a subcontract whereby the Defendant would design supply and install certain piling works.
The Defendant issued a payment claim under the Building and Construction Industry Security of
Payment Act 1999 (“the Act”), which was later, referred to an adjudicator, who (being the second defendant in these proceedings) found in favour of the Defendant.
The Plaintiff asserted that the adjudicator’s determination is void because it denied it natural justice or, failed to exercise the powers given to him under the Act in good faith; on the basis that the adjudicator refused to consider a geotechnical report, as a ground for rejecting the payment claim.
The adjudicator took the view that he could not consider the geotechnical report because it advanced reasons for withholding payment that had not been included in the Plaintiff’s payment schedule.
Whether the adjudicator denied an appropriate measure of natural justice to the Defendant by failing to consider the geotechnical report?