ERROL INVESTMENTS PTY LTD V TAYLOR PROJECTS GROUP PTY LTD [2005] NSWSC 1125
Supreme Court of New South Wales – 4 November 2005
FACTS
Errol Investments Pty Ltd (“Errol”) and Taylor Projects Group Pty Ltd (“Taylor”) entered into a construction contract. Taylor served two Payment Claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) (‘the Act’) onErrol in the sum of $771,000.00. In response, Errol submitted two Payment Schedules under the Act contending that the Payment Claims were invalid because it could not “in any meaningful manner assess all parts of the claim being made”. In support of its contention, Errol, in its Adjudication Response, submitted a statutory declaration (by Mr. Norman Barnes) which said that the progress claim relied upon differed from many previous claims in respect of the same construction contract and that either it was impossible for him to assess it in a reasonable way or, later, that the claim was difficult to assess. The statutory declaration of Mr. Barnes continued to say that, nevertheless, Errol went on to endeavour to assess the claim. Errol also submitted a statutory declaration by Mr. David Collins who assisted Mr. Barnes. Two Adjudicators were appointed to determine the two Payment Claims and the matter was determined in favour of Taylor. The Adjudicator noted the statutory declaration of Mr. Collins, however, did not appear to consider the statutory declaration of Mr Barnes.
Errol then sought to appeal the Adjudication Determination on the grounds, firstly, that there was a denial of natural justice or procedural fairness on the part each Adjudicator and, secondly, that there was a failure to comply with section 22(2) of the Act. Section 22(2) of the Act sets out the matters which the Adjudicator is to consider in making his determination, including“the Payment Schedule together with all submissions that have been duly made…in support of the schedule”. In particular, Errol contended that neither Adjudicator considered material in the form of the statutory declaration by Mr. Barnes put forward as part of the submissions.
ISSUES
Whether the Adjudication Determination was void for want of natural justice and whether the Adjudicator had considered the statutory declaration of Mr. Barnes.
FINDING
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