DIGITAL CITY V QX AUSTRALIA [2004] NSWSC 933
Supreme Court of New South Wales – 7 October 2004
FACTS
Digital City Pty Ltd (‘Digital’), the proprietor under a construction contract, engaged QX Australia Pty Ltd (‘QX’) to carry outsome building work. QX allegedly served a Payment Claim in accordance with the Building and Construction Industry Security of Payment Act 1999 (NSW) (‘the Act’). Digital asserted that it never received a Payment Claim within the meaning of section 13 of the Act. QX, however, asserted that on 27 August 2004 it faxed, to Digital’s transmission number, a bundle of documents, which included several documents which could be argued to be a Payment Claim within the meaning of section 13 of he Act. QX served an Adjudication Application on Digital under the Act. Digital then applied for an interlocutory injunction to halt the adjudication process, on the grounds that the Adjudicator did not have jurisdiction to make his adjudication determination.
QX submitted that if the injunction was to be granted, Digital should be required to pay into court an amount equal to the amount which is claimed in the Payment Claim. In this regard, QX relied upon the decision of Gzell J in Abacus Funds Management Ltd v Davenport [2003] NSWSC 935, where his Honour, when granting an injunction restraining the taking of steps to enforce a determination under the Act, required a payment into court. Further, QX submitted that an amount should be paid into court on that basis that, if the Court were to ultimately decide that the adjudication proceedings had been validly commenced, the bringing of proceedings in Court would have had the effect of delaying the time by which QX could receive its money.
ISSUE
Whether an interlocutory injunction should be granted against the advancing of the adjudication process, on the grounds that the adjudicator has no jurisdiction.
FINDING
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