Supreme Court of New South Wales – 6 September 2005


Glen Eight Pty Ltd (“Glen Eight”) entered into a contract with Home Building Pty Ltd (“Home Building”) (now in liquidation) for the construction of a residential apartment building at 8 Glen Street, Milsons Point. Home Building served a Payment Claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (‘the Act’) in the sum of $6,650,000 for building work carried out on the site.

The matter proceeded to Adjudication, Glen Eight submitting that no money was owed to Home Building as it had paid Home Building’s subcontractors under Clause 29.3 of the Contract, which provided that Glen Eight may pay a subcontractor instead of Home Building if no evidence is provided that the subcontractors have been paid.

The Adjudicator determined that the amount of $2,919,000 was due to Home Building on the basis that Glen Eight had not elected to pay Home Building’s subcontractors under Clause 29.3 and did not allow a credit of $5,700,000 which had been paid to Home Building’s subcontractors. The Adjudicator did not request submissions on the construction of Clause 29.3.

Glen Eight then commenced proceedings challenging the Adjudicator’s Determination on the grounds that it breached the essential requirement of natural justice by making a fundamental decision of law without either party knowing the Adjudicator might adopt that construction. Glen Eight sought an interlocutory injunction to restrain Home Building from applying for an Adjudication Certificate.


Whether an interlocutory injunction should be granted.


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