DE MARTIN & GASPARINI PTY LTD V STATE CONCRETE PTY LTD & ORS
[2006] NSWSC 31
Supreme Court of New South Wales – 11 January 2006
FACTS
De Martin & Gasparini Pty Limited (“DMG”) and State Concrete Pty Ltd (“State Concrete”) entered into a contract whereby State Concrete agreed to provide work and materials for a project known as Roads Waterside. State Concrete submitted a Payment Claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) acknowledging that State Concrete had received payment from DMG in the amount of $1,156,437 (a fact which was confirmed in the Adjudication of a previous Payment Claim) and claiming a further sum of $168,768.05. DMG provided a Payment Schedule agreeing that the amount of $1,156,437 had been paid, but denying State Concrete’s entitlement to the further sum. The matter proceeded to Adjudication.
The Adjudicator, in calculating the amount to which State Concrete was entitled, determined that the amount that had beenpaid by DMG to State Concrete was $962,143, which was less than the amount that the parties agreed had been paid. DMG appealed he Adjudication Determination, arguing that the Adjudicator had denied DMG the measure of natural justice it was entitled to receive.
ISSUE
Whether an Adjudicator, in light of the requirement that parties are to be afforded natural justice, may determine an issue on a basis for which neither party had contended without giving notice to the parties and an opportunity to address the point.
FINDING
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