The NSW Court of Appeal has handed down a significant decision in relation to security for payment determinations by adjudicators. Facts The Roads & Traffic Authority of New South Wales (“the RTA”) entered into a contract with John Holland Pty Limited (“John Holland”) for construction of a dual carriageway and associated bridges in an area north of Kiama, NSW. John Holland served on the RTA a Payment Claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“Act”) claiming $8 million.

The RTA responded with a Payment Schedule proposing to pay $738,033.42. John Holland then served an Adjudication Application and the RTA responded contending that the Adjudicator had no jurisdiction to determine the Adjudication as he was being asked to perform a dispute resolution role under the contract and not a valuation role in relation to an amount of a progress payment. Cygwin Full Install Download. Further, the RTA argued that the Adjudication of the claim was beyond the object of the Act as the claim had been determined by the Superintendent and referred to Expert Determination under the Contract. The Adjudicator rejected the RTA’s submissions on the grounds that they were not included in its Payment Schedule and determined that the RTA was to pay $5.5 Million.

The Supreme Court found that the Adjudicator failed to consider the RTA’s jurisdiction submission. John Holland challenged the decision in the Court of Appeal submitting that the Adjudicator was under no obligation to consider the jurisdiction submission as it was not raised in the Payment Schedule and the RTA had no grounds to withhold payment. Issue Whether the Adjudicator considered, and was obliged to consider, the jurisdiction submission notwithstanding that it was not included in the Payment Schedule. Decision The NSW Court of Appeal allowed the appeal. Despite the Supreme Court’s finding, the Court of Appeal held that since the RTA’s jurisdiction submissions were not included in the Payment Schedule, they were not considered to be “duly made”.

However, the court held that a failure by the Adjudicator to consider these submissions would not amount to a jurisdictional error invalidating the decision. Impact In such circumstances it would be wise to include in a Payment Schedule argument that the Payment Claim is invalid on the basis that the Adjudicator lacks jurisdiction.

This would ensure that the respondent can later raise such a submission in Adjudication. Shaw v Yarranova Pty Ltd & Anor [2006] VSCA 291 Victorian Court of Appeal (VCA) rules that an “off the plan” contract for the sale of a residential apartment is not a “major domestic building contract” within the meaning of the Domestic Building Contracts Act 1995 (Vic) (“Act”). Facts An apartment was purchased “off the plan” in Melbourne’s Docklands precinct from a developer in April 2000.

Business law. The Business Law Committee actively monitors all matters relating to or associated with business law. Contract for Sale of Business 2015. General Steel Industries Inc v Commissioner of Railways (N.S.W) (1964) 112 CLR 125. Fancourt v Mercantile Credits Ltd. Camberfield Pty Ltd v Klapanis [2004] VSCA 104. Bayne v Baillieu (1908) 6 CLR. [4] The substantive claim arises out of an agreement for a sale of a business. The agreement was.

The purchaser refused to settle until alleged minor defects were rectified. A notice to complete was issued but the purchaser declined to complete the sale contract on the ground that s.42 of the Act applies, that is, the developer cannot demand payment under the sale contract until rectification works have been completed by the developer. Issue Whether the contract for sale made between Shaw (purchaser) and Yarranova (developer) was a “major domestic building contract” within the meaning of the Act. The purchaser argued that a “major domestic building contract” was not limited to contracts to carry out building work, but extended to contracts under which the developer arranged for such works to be carried out by a third party. Decision Justice Bell J concluded that under the contract, the “core obligation” of Yarranova was to cause the apartment building to be constructed, not to construct it. As a consequence Shaw forfeited his deposit and Yarranova was entitled to sell the apartment.