FALGAT CONSTRUCTIONS V MASTERFORM  NSWSC 525
Supreme Court of New South Wales – 23 June 2005
Falgat Constructions (‘Falgat’) entered into a construction contract with Masterform to carry out works building works at 23 to 25 Chesterfield Parade, Bronte. A contractual dispute arose and proceedings commenced in the Consumer Trader & Tenancy Tribunal (‘CTTT’). At the same time as these proceedings were on foot, Masterform submitted a Tax Invoice deemed to be a Payment Claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (‘the Act’) for $20,541.49. Falgat, at the time of receiving the claim believed it was simply a statement much the same as previous months’ statements. Falgat responded, demanding delivery dockets for steel and concrete, however, there was no payment schedule under the Act. Masterform submitted an Adjudication Application under section 17(2) of the Act to the Master Builders Association who awarded the full amount to Masterform.
Masterform served a statutory demand under section 459G of the Corporations’ Act. Falgat then brought proceedings seeking to set aside the statutory demand on the grounds that there was a genuine dispute as to the amount due between the parties.
Falgat also raised res judicata, that as a result of the CTTT proceedings Masterform could not agitate the same issues that were the subject of another proceeding as the Adjudicator held the status of a judicial Tribunal. Further, Falgat submitted the demand should be set aside as there was an offsetting claim.
Whether an Adjudication Determination is final and conclusive for the purpose of setting aside a statutory demand similar to the decision of a Court or Tribunal.