LANSKEY CONSTRUCTIONS PTY LTD V NOXEQUIN PTY LTD (IN LIQ) [2005]
NSWSC 963
Supreme Court of New South Wales – 3 November 2005
FACTS
Lanskey Constructions Pty Ltd (“Lanskey”), the builder, was engaged in the construction of a project known as Northgate Apartments in Wollongong. Noxequin Pty Ltd (in liquidation) (“Noxequin”) was a sub-contractor to Lanskey engaged to do the formwork. Noxequin submitted a Payment Claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (‘the Act’) for final payment and release of retention monies totalling $145,849.40. Lanskey responded with a Payment Schedule rejecting Noxequin’s claims and claimed that it was owed an amount of $21,481.92. Noxequin lodged an Adjudication Application and Lanskey lodged its Adjudication Response. An Adjudicator was appointed and determined the Adjudication in favour of Noxequin. The Adjudicator considered Lanskey’s deductions as “set offs”, however, determined that it was not necessary for the claims to be determined as Nozequin had not had an opportunity to address the reasons and determined that as a Subcontract Superintendent had not been appointed. Lanskey was not entitled to make its own assessment of its entitlement to set off. Lanskey then sought to appeal the Adjudicator’s Determination on the grounds that Adjudicator failed to engage in a bona fide exercise of power and failed to afford Lanskey natural justice in respect of the deductions.
ISSUES
Whether the Adjudicator exercised its powers in a bona fide manner.
FINDING
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