JBK ENGINEERING PTY LIMITED V BRICK & BLOCK COMPANY PTY LIMITED
Supreme Court of New South Wales – 14 November 2005
Brick & Block Company Pty Ltd (“Brick & Block”) entered into contracts with JBK Design & Construction Pty Ltd (“JBKD”) and JBK Engineering Pty Ltd (“JBKE”) to design and manufacture respectively raw materials conveyors at its Port Kembla plant. JBKE and JBKD both served payment claims pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) on Brick & Block. Brick & Block provided payment schedules in response to each claim proposing to make no payment.
JBKE and JBKD each made adjudication applications in respect of their claims, and Mr. Phillip Davenport was appointed as adjudicator for each application. Mr. Davenport determined that both JBKE and JBKD were entitled to the full amount claimed. Each JBK company filed Adjudication Certificates obtained in respect of the determinations as judgments in the Supreme Court.
JBKE later submitted another payment claim and adjudication application, which was determined by Ms Helen Durham in the same amount as the first JBKE determination.
Brick & Block made an application to the Supreme Court to have the judgments set aside on the basis that the Mr. Davenport had allowed each claim simply because he rejected Brick & Block’s reasons for withholding payment without considering the merits of the claims themselves, and in doing so had not made a determination for the purposes of the Act. Brick & Block argued that if the first JBKE determination was held to be void, the determination of Ms Durham should also be void.
Had the first adjudicator, Mr. Davenport, given adequate consideration to each of the claims?