Australian Court Decisions


Multiplex Prt Ltd v Luikens & Anor [2003]  NSWSC 1140


Quasar Constructions NSW Pty Ltd v Demtech Pty Ltd [2004] NSWSC 116
Defendant engaged by plaintiff to perform construction work under contract. Defendant issued progress payment claim, to which plaintiff issued payment schedule alleging nothing owing to defendant. Plaintiff referred dispute to arbitration, which found in favour of the defendant ordering the plaintiff to pay. Plaintiff now seeks to have the adjudication determination set aside alleging a jurisdictional error, and that all consequential relief ordered be void. SC found there had been a jurisdictional error, that the claimed amount was not "progress payment" as purported, as it included sums for work not completed. Adjudication determination quashed.

Brodyn Pty Ltd t/a Time Cost and Quality v Davenport & Anor [2004] NSWCA 394

AMD Formwork Pty Ltd v Yarraman Construction Group Pty Ltd 3 August, 2004



Co-ordinated Construction Co Pty Limited v Climatech (Canberra) Pty Ltd [2005] NSWSC 312

Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd & Ors [2005] NSWCA 229
Appeal by Coordinated against primary judge's decision against Coordinated. Coordinated and Climatech in sub-contract where Climatech agreed to carry out construction work. Coordinated did not pay Climatech's payment claims, and Climatech then served a payment claim. Coordinated responded with a payment schedule with a proposed payment of 'nil'. Coordinated appealing against adjudication decision that found in favour of Climatech, allowing "related service" payments to be included in the payment claim under the Act. Appeal dismissed with costs. Grounds for each part of the payment claim were adequately indicated so as to allow the payee to know what they are paying for. 

Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd & Ors [2005] NSWCA 228
Subcontractor claimed "delay damages" and interest as components of progress payments under the Act. Court held that delay damages and interest under the contract could be claimed for "construction work carried out" or "for related goods and services supplied" within the definition of "claimed amount". I.e. any amount that a construction contract required to be paid as part of the total price of construction work is generally an amount due for that construction work, even if the contract labels it as "damages" or "interest". Court considered that the definition of "claimed amount" under the Act should not be construed narrowly.

Alan Conolly & Co v Commercial Indemnity [2005] NSWSC 339

Lanskey v Noxequin [2005] NSWSC 963

Clarence Street Pty Ltd v Isis Projects Pty Ltd [2005] NSWCA 391

The Minister for Commerce (Formerly Public Works & Services) v Contrax Plumbing (NSW) Pty Ltd & Ors [2005] NSWCA 142
Minister appealing against decision in which he was ordered to pay Contrax's costs of proceedings. Minister entered contract with Contrax for Contrax to carry out work on a Hospital for in excess of $5m. Contrax submitted progress payment claim for additional moneys as an increase of the contract price. Minister responded with payment schedule claiming nil and Contrax then applied for adjudication, which determined the amount to be paid by the Minister to Contrax. Court found that the meaning of "progress payment" in the Act was meant to be a generalised meaning. Appeal dismissed with costs.


Brookhollow Pty Ltd v R&R Consultants Pty Ltd & Anor [2006] NSWSC 1
Brookhollow seeks declaration that adjudication determination is void. Court considering whether a payment claim was valid for the purposes of invoking the Act. Brookhollow in sub-contract with R & R, where R & R were to perform demolition and excavation work. Dispute over payment claim made by R &R. Court upheld adjudication determination, finding that the payment claim was valid. Appeal Dismissed.

Bitannia Pty Ltd & Anor v Parkline Constructions Pty Ltd (No 2) [2006] NSWCA 255

Bitannia Pty Ltd & Anor v Parkline Constructions Pty Ltd [2006] NSWCA 238

Pacific General Securities Ltd & Anor v Soliman and Sons Pty Ltd & Ors [2006] NSWSC 13
Plaintiffs (owners) and first defendant (contractor) were parties to a building contract for construction work. Owners replied to contractor's payment claim with a payment schedule briefly refusing to pay the claimed amounts. Contractor applied under the Act for adjudication of its payment claim. Adjudicator determined that the owners' submissions could not be considered as they covered matters which were not referred to on its payment schedule, and thus found in favour of the contractor. Court considering owners' appeal on the basis that the adjudicator's determination constituted a failure to properly discharge his function under the Act. SC allowed the appeal, holding that the adjudicator's determination was void because for an adjudicator to determine a progress payment simply b/c he or she rejects the relevance of the respondent's material bespeaks misconception of the adjudicator's function such as to constitute jurisdictional error or failure of a basic and essential requirement of validity, such as to render the determination void. Court held there was not an adjudication within the meaning of the Act, but only a rejection of the respondent's contentions.

JBK Engineering Pty Limited v Brick and Block Company Pty Limited [2006] NSWSC 1192
Appeal against adjudication determinations on the grounds that the process of reasoning departed from the proper approach. Specifically, that the adjudicator rejected Brick & Blocks reasons for withholding payment without considering the merits of the claims.  Held challenges to adjudication determinations failed, as the adjudicator had provided sufficient reasoning behind his determinations.


John Holland Pty Limited v Roads & Traffic Authority of New South Wales & Ors [2007] NSWCA 19
Appellant made adjudication application re value of payment made by respondent. Respondent challenged adjudicator's jurisdiction to determine the claim. Appellant claimed this was a reason for withholding payment which was not in the respondent's payment schedule, contrary to the Act, and that the respondent's submission was not "duly made". Court held a narrow view as to what amounts to reasons for withholding payment should not be taken. Held the respondent's jurisdiction submission was a reason for withholding payment and was in breach of s20(2B) and was not duly made.

Fernandes Constructions v Tahmoor Coal (t/a Centennial Coal) [2007] NSWSC 381

Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2007] NSWSC 941


O'Donnell Griffin v John Holland [2008] WASC 58

Lumbers v Cook [2008] HCA 27

Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248

Protectavale (first applicant) and K2K (first respondent) were joint venturers in a residentail and retail development. They engaged Lorne Bay Pty Ltd (second respondent) to carry out the construction work. Protectavale was not satisfied with how the work was performed - claiming delays and loss suffered as a result of difference between estimated and actual cost of development. Protectavale commenced action claiming damages from both K2K and Lorne Bay. Lorne Bay issued an invoice and brought a cross claim against Protectavale and K2K for $600K as the amount due to it under the construction contract. It now seeks summary judgment on the cross claim. Court held the invoice was not a valid progress payment claim or valid final payment claim for the purposes of the Payment Act, and thus denied the appeal as there was no real dispute as to any of the relevant material facts.

David Hurst Constructions Pty Ltd v Durham [2008] NSWSC 318
Defendants (landowners) entered contract with the plaintiff (builder) for construction of a building. Dispute over payment claim made by builder, to which landowners issued payment schedule for a significantly smaller amount. Adjudicator determined in favour of landowners - builder now appealing for adjudication determination to be void on grounds of jurisdictional error. Court found Builder's grounds confusing and dismissed the apeal as lacking merit.


Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd t/a Novatec Construction Systems [2009] NSWSC 416

Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69

Skinner v Timms & Anor [2009] QSC 46

Nuemann Contractors Pty Ltd v Peet Beachton Syndicate Limited [2009] QSC 376

Application by Neumann (applicant) for judgment against respondent (Peet Beachton). Peet resisted the application claiming the payment claim made by Neumann was not valid under the Building and Construction Industry Payments Act 2004 (Qld) as it did not identify the construction work or related goods and services to which the claim related (as required by s17(2)(a)). Application dismissed as Neumann was not able to success in proving his payment claim identified the construction work to which it related in accordance with the Act.


Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd & Ors [2010] QSC 95


Hanave Pty Ltd v Nahas Construction (NSW) Pty Ltd [2011] NSWSC 1476

QCLNG Pipeline Pty Ltd v McConnell Dowell Constructors (AUST) Pty Ltd & Anor [2011] QSC 292

Shoalhaven City Council v Firedam Civil Engineering Pty Limited [2011] HCA 38

State of New South Wales v UXC Limited [2011] NSWSC 530

Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd [2011] QSC 345 2 December 2011

Walton Pty Limited v Illawarra Hotel Company Pty Limited [2011] NSWSC 1188


Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2012] FCAFC 4

470 St Kilda Road Pty Ltd v Reed Constructions Australia Pty Ltd & Anor [2012] VSC 235

Owners Corporation Strata Plan 72535 v Brookfield [2012] NSWSC 712

Casaceli v Natuzzi SPA [2012] FCA 691

Thiess Pty Ltd v Warran Brothers Earthmoving Pty Ltd [2012] QSC 373


SEA CONTAINERS LTD v ICT PTY LTD [2002] NSWCA 84 18 April 2002

arbitration - misconduct of arbitrators - cancellation/commitment fees - unilateral alteration of arbitration agreement - reasonable apprehension of bias - removal of arbitrators

The Court found that when appointed, an arbitrator accepts a quasi judicial position governed by the law. Not only must an arbitrator be impartial, he or she must not give the appearance of bias. Attempts by an arbitrator to renegotiate their contract after appointment can easily undermine the confidence of one or more parties in the arbitrator's ability to perform their duties. The Court held that the conclusions reached by Gzell J were justified on the facts. The misconduct of the arbitrators was such that there was no choice but to remove them. Appeal dismissed.

ICT PTY LTD v SEA CONTAINERS LTD [2002] NSWSC 77 22 February 2002

removal of arbitrators - pressure to agree to cancellation fees - whether arbitrators should be represented - court power over costs of abortive arbitration - power to appoint new arbitrators - misconduct - appearance of bias

Plaintiff alleged that the arbitrators' demands that the parties agree to pay them a cancellation or commitment fee in the event that the arbitration did not proceed constituted misconduct and unsuitability on the basis of the appearance of bias, the defendant having agreed to these terms in the face of the plaintiff's opposition. The Court commented that there can be no impropriety in an arbitrator requesting a commitment fee or a cancellation fee. The issue in this case was as to the manner in which the arbitrators persisted in their request after rejection by one of the parties. On the evidence Gzell J was satisfied that each of the arbitrators misused his position in applying pressure to the parties to agree to a cancellation or commitment fee and that constituted misconduct in terms of s44(a) of the Act. Order made for removal of arbitrators.
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