Federal Court of Australia

Forte Sydney Carlingford Pty Ltd v Li [2022] FCA 1499

ORDERS

THE COURT ORDERS THAT:

Upon the usual undertaking as to damages by the first plaintiff by its Senior Counsel:

1.    Australian Building & Construction Dispute Resolution Service Pty Ltd (ABCDRS) be restrained from referring the second defendant’s payment claim dated 7 September 2022 and adjudication application identified as ABCDRS/NSW/485 to an adjudicator for determination under Pt 3 Div 2 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act).

2.    The second defendant be restrained from submitting its payment claim dated 7 September 2022 and adjudication application to any authorised nominating authority under Pt 3 Div 2 of the Act.

3.    Orders 1 and 2 operate until the final determination of the proceeding, or further order.

4.    The costs of the first plaintiff’s interlocutory application dated 5 December 2022 be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The first plaintiff seeks an interlocutory injunction, pending the final determination of the principal proceeding, against the second defendant from submitting a payment claim to adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW). It also seeks to restrain the relevant nominating authority under that Act from referring any claim by the second defendant for adjudication to an adjudicator for determination under the Act.

2    The essential basis for the injunction is that the second defendant has twice previously referred a payment claim for adjudication under the Act, and on both occasions the adjudicator concluded that the claim failed to satisfy the jurisdictional requirements for adjudication. Dissatisfied with those outcomes, and contending that the adjudication decisions are a nullity as being vitiated by jurisdictional error, the second defendant contends that it can ignore them and resubmit its claim to a different adjudicator in the hope or expectation of receiving a different outcome. The first plaintiff contends that at least the most recent adjudication is not vitiated by jurisdictional error, or that the first plaintiff has a reasonably arguable case in defence of the adjudication as being free of jurisdictional error, and that the second defendant’s further submission of the payment claim to adjudication is not permitted under the Act and in any event constitutes an abuse of process. The right that it seeks to protect by the injunction is its right not to be subjected to repeated invalid payment claims and adjudication applications.

3    There is no dispute that the claim for an injunction is within the “associated” jurisdiction of this Court as conferred by s 32(1) of the Federal Court of Australia Act 1976 (Cth) as being a matter not otherwise within its jurisdiction but which is associated with a matter in which the jurisdiction of the Court is invoked. The latter matter, being the “core matter” referred to in s 32(1), is the subject of the principal proceeding in which the plaintiffs’ claims include claims for breach of the statutory duties under ss 180-183 of the Corporations Act 2001 (Cth). It is thus a matter arising under a law of the Parliament.

The parties and the principal case

4    The first plaintiff is Forte Sydney Carlingford Pty Ltd (the Owner). It is a special purpose vehicle established to undertake a joint venture by way of a residential apartment development in Carlingford, NSW. In short terms, there were discussions and dealings which led to persons, and companies which they controlled, to participate in the project.

5    The Owner owns the property on which the project is currently under development. By a contract dated 3 March 2020, the second defendant, Forte Sydney Carlingford Development Pty Ltd (the Developer), engaged Forte Sydney Construction Pty Ltd (the Builder) to undertake the construction work for the project.

6    The disputes that are the subject of the plaintiffs’ claims in the principal proceeding concern the terms of the agreements between the various parties standing behind the Owner, the joint venture vehicle, concerning, amongst other things, the funding of the project. By a cross-claim, the Developer claims from the Owner the costs of the construction work undertaken by the Builder and for which it is liable to the Builder. That claim substantially overlaps with the payment claims that the Developer has submitted under the Act.

The Building and Construction Industry Security of Payment Act 1999 (NSW)

7    The object of the Act, as expressed in s 3(1), is to ensure that any person who undertakes to carry out construction work (or who undertakes to supply related goods and services) under a construction contract is entitled to receive, and is able to recover, progress payments in relation to the carrying out of that work and the supplying of those goods and services. The relevant Minister in introducing an amendment Bill for the Act explained that the Act was designed to ensure payment and, for that purpose, the Act set up a unique form of adjudication of disputes over the amount due for payment. Parliament intended that a progress payment, on account, should be made promptly and that any disputes over the amount finally due should be decided separately. Although the final determination could be by a court or by an agreed alternative dispute resolution process, in the meanwhile the claimant’s entitlement to a progress payment, if in dispute, would be decided on an interim basis by an adjudicator. See Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd [2016] HCA 52; 260 CLR 340 at [4].

8    The Act is intended to be beneficial legislation that operates in a “rough and ready” way to preserve cash flow to builders: Lahey Constructions Pty Ltd v The State of New South Wales [2021] NSWCA 69 at [63]. The Act is intended to provide “a speedy and effective means of ensuring cash flow to builders”, reflecting “an appreciation on the part of the legislature that an assured cash flow is essential to the commercial survival of builders”: Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379; 95 NSWLR 157 at [66], citing R J Neller Building Pty Ltd v Ainsworth [2008] QCA 397; (2009) 1 Qd R 390 at [39]-[40]. Speed is of the essence of the scheme – “[d]isputes are to be resolved on an interim basis by a speedy and tightly controlled regime for expert adjudication”: Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113 at [13].

9    The Act “imposes short and apparently mandatory time constraints on each stage of the process for making claims”: Cardinal Project Services Pty Ltd v Hanave Pty Ltd [2011] NSWCA 399; 81 NSWLR 716 at [8]. It has been described as “brutally fast”: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; 264 CLR 1 at [40]. The claims process “involves periods measured in days, not weeks or months”: BSA Advanced Property Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd [2022] NSWCA 82 at [24]. The scheme has also been described as one of “pay now, argue later”: Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151; 95 NSWLR 82 at [102]. “The whole thrust of the Act” is that “an assessment is to be made expeditiously with strict adherence to time deadlines with minimum formality”: Perform (NSW) Pty Ltd v MEV-AUS Pty Ltd [2009] NSWCA 157 at [132].

10    The Act applies only to a “construction contract” which is defined in s 4 as “a contract or other arrangement under which one party undertakes to carry out construction work, or to supply related goods and services, for another party”. “Construction work” is defined in s 5 to include all manner of work that might conventionally be described as building construction work. It does not include work in the nature of property development or project management in support of construction. “Related goods and services” are defined in s 6. Relevantly, related services include the provision of labour to carry out construction work, architectural, design, surveying or quantity surveying services in relation to construction work, and building, engineering, interior or exterior decoration or landscape advisory services in relation to construction. They do not otherwise include services in the nature of property development or project management in support of construction.

11    Section 7(2) identifies certain construction contracts to which the Act does not apply. Section 7(3) provides that the Act “does not apply to a construction contract to the extent to which it contains” certain provisions. The identified provisions include, in s 7(3)(c)(iii), provisions under which a party undertakes to provide an indemnity with respect to construction work carried out, or related goods and services supplied, under the construction contract.

12    Part 2 of the Act provides for the right to progress payments, and Pt 3 deals with the procedure for recovering progress payments. Division 1 of Pt 3 provides for payment claims and payment schedules, and Div 2 provides for the adjudication of disputes. Section 17 provides for adjudication applications to be made. As will be seen, the injunction that is sought against the Developer would intervene at this point, preventing the Developer from resubmitting payment claims to authorised nominating authorities. Section 17(6) provides that once such an application is made, it is the duty of the authorised nominating authority to which the application is made to refer it to an adjudicator as soon as practicable. The injunction that is sought against the authorised nominating authority would intervene at this point, preventing the referral of an adjudication application to an adjudicator.

13    Section 21(3) sets a time period within which an adjudicator is to determine an adjudication application. Relevantly, that is within 10 days of the respondent to the application lodging their response or, if a response is not lodged, the end of the period within which the respondent was entitled to lodge a response. Section 22(1) provides that an adjudicator is to determine three things, namely the amount of the progress payment (if any) to be paid, the date on which any such amount became or becomes payable and the rate of interest payable on any such amount.

14    Section 26 provides that a claimant may withdraw an adjudication application and make a new adjudication application in two circumstances, one of which (in s 26(1)(b)) is if an adjudicator who accepts an adjudication application “fails to determine the application within the time allowed by section 21(3)”. As will be seen, the Developer relies on s 26(1)(b) as entitling it to withdraw the adjudication applications which it says were not “determined” and resubmit them for fresh adjudication.

The Developer’s adjudication applications

15    The Developer has previously submitted two adjudication applications under the Act naming the Owner as respondent, both of which were refused on the basis that the adjudicator lacks jurisdiction because there is no “construction contract” between the Owner and the Developer. It is a jurisdictional requirement of an adjudication application under s 17 of the Act that the payment claim in respect of which adjudication is sought is a claim made under a “construction contract” as defined in s 4.

16    First, on 13 October 2021, the Developer submitted an adjudication application in respect of a payment claim dated 6 September 2021 to an authorised nominating authority under the Act. The Developer’s submissions in support of the adjudication application stated that the effect of the oral agreements between the relevant parties was that the development land would be owned by the Owner, the Developer would develop the site and the Developer would engage the Builder to perform building works. It was said that there was a construction contract between the Developer and the Builder. The amount claimed from the Owner was nearly $4 million.

17    The appointed adjudicator was Stuart Wood. Mr Wood issued a determination dated 25 October 2021. He found that the arrangement between the Developer and the Owner is not a “construction contract” consistent with the definition given in s 4 of the Act. He also found that even if it were a construction contract, under s 7(3)(c) it is exempt from the application of the Act because the parties had entered into loan agreements and/or indemnities as referred to in that provision.

18    Secondly, on 7 October 2022, the Developer submitted an adjudication application in respect of a payment claim dated 7 September 2022 to Resolution Institute, an authorised nominating authority. In the application, the Developer claimed approximately $8.44 million. In its submissions in support of the adjudication application it characterised the relationship between it and the Owner as follows:

(1)    The adjudication application concerns construction work and related goods and services “provided by the [Developer] on behalf of the [Owner] in respect of the design and construction” of the project.

(2)    The Developer is the project development company and responsible for “providing development and building advisory services including managing [the Builder’s] performance of the construction Project and the planning of the Project”, engaging or instructing all consultants and sales and marketing service providers for the Project, and attempting to obtain finance for the Owner from a lender for the Project.

(3)    The Developer engaged the Builder as contractor to carry out the construction works.

(4)    There was a joint venture agreement for the project which included that the “development company would be the [Developer], a SPV [to] manage and undertake the development on the [Owner’s] behalf” and the Builder would “be engaged to physically construct the Project under a building contract”.

(5)    There was a project development agreement by which the Owner engaged the Developer “to provide, procure and manage the goods services, know-how and infrastructure for the Project” (sic). The nature of the agreement was:\

(a)     The [Developer] would be the project development company of the Project, and that this role included causing the project to be constructed (through contractors) and providing development and building advisory services including managing the Builder’s performance of the construction of the Project, reporting to the [Owner] (including Roger and Isaac) and the planning of the Project, engaging or instructing all consultants and sales and marketing service providers for the Project, and attempting to obtain finance from a lender for the Project;

(b)     The [Developer] would manage the payment of all costs and expenses associated with the Project at first instance;

(c)     The [Owner] would pay or reimburse the [Developer] for all the costs, expenses or liabilities that the [Developer] incurred in respect to the Project or in its role as project development company;

(d)     The [Owner] would also pay the [Developer] $150,000 project management fee in addition to any costs, expenses or liability it incurred.

(6)    The Owner has not paid the Developer in full for “the Contract Works carried out by the Builder”.

(7)    The contract is a construction contract under the Act “because it relates to the [Developer] performing construction work and providing goods and services to the [Owner]”.

(8)    The Developer provided related goods and services as referred to in the Act because it provided to the Owner the construction of the project, labour to carry out construction work, architectural and related professional services in relation to the construction work, and building and engineering advisory services in relation to the construction work.

19    Barry Tozer was the appointed adjudicator. Mr Tozer issued an adjudication dated 24 October 2022. The adjudication canvassed the parties’ respective submissions and evidence with regard to whether the relevant contract is a construction contract within the meaning of the Act. Mr Tozer found as follows:

42.     I find that the [Developer] did not directly perform any construction work or provide related goods and services and the agreement between the [Developer] and the [Owner] was not a ‘construction contract’ or arrangement as required by s 5 or s 6 of the Act.

20    Mr Tozer found in the alternative that if his finding that there was no construction contract was incorrect, in any event the contract was “excluded from the operation of the Act under s 7(3)(c)(iii)”.

21    On 4 November 2022, the Developer advised Resolution Institute that it withdrew its adjudication application of 7 October 2022. At the same time, it made a new adjudication application to Resolution Institute and requested that Mr Tozer not be appointed to adjudicate the new application. The Developer explained that it considered Mr Tozer’s determination not to be a valid determination under the Act. On that basis, it said that Mr Tozer had failed to determine the application within the time allowed by s 21(3) and that it was entitled to submit a new application.

22    Submissions made on behalf of the Developer in support of the new application explained that the Developer was entitled to make a new application under s 26(1)(b) because Mr Tozer had failed to determine the application within the time allowed by s 21(3). Two independent reasons, each said on its own to be sufficient to justify the contention that no determination had been made, were identified.

23    First, it was said that Mr Tozer had not determined the application that was before him because he had decided that he lacked jurisdiction. As, on his view, there was no “application” to determine, he did not “determine” any such application – he issued a “non-determination”.

24    Secondly, it was said that Mr Tozer’s determination was invalid ab initio because Mr Tozer erroneously concluded that there was an absence of a jurisdictional fact, viz the existence of a “construction contract”, when in fact that jurisdictional fact existed. It is submitted on behalf of the Developer to me that the determination was invalid and a nullity on account of jurisdictional error by Mr Tozer, namely that he asked himself the wrong question. The submission is that he asked whether the Developer had itself, or “directly”, performed construction work whereas he should have asked himself whether the Developer had “undertaken to carry out construction work”.

25    In its submissions in support of the new adjudication application, the Developer also said that Mr Tozer’s conclusion that the contract was excluded from the operation of the Act by the exemption in s 7(3)(c)(iii) was incorrect. It submitted that Mr Tozer made a legal error because the effect of that provision is to exclude from the operation of the Act only the provisions of the contract that are found to fall within the provision, ie, that provide an indemnity with respect to construction work carried out, and not the contract as a whole. The Developer submits to me that the result is that the adjudicator must disregard the indemnity provisions of the contract but still adjudicate the payment claim.

26    It is submitted on behalf of the Developer to me that Mr Tozer’s conclusion with regard to the exclusion of the contract or arrangement from the Act by s 7(3)(c)(iii) was also, by his error of law, infected by jurisdictional error. The decision was therefore a nullity and could be ignored.

27    The Owner then filed and served an interlocutory application seeking urgent injunctive relief against Resolution Institute to prevent it from referring the new application to an adjudicator for adjudication under s 17(6). To that, Resolution Institute responded by agreeing to refrain from referring the new adjudication application to an adjudicator pending the determination of the interlocutory application. The Developer responded by withdrawing the adjudication application from Resolution Institute and, on 30 November 2022, submitting it to a different authorised nominating authority, namely Australian Building & Construction Dispute Resolution Service Pty Ltd (ABCDRS).

28    On 1 December 2022, ABCDRS confirmed receipt of the application for adjudication and stated that it would proceed to appoint an adjudicator.

29    As it happens, the parties received the notification from ABCDRS while they were before me in a case management hearing. On the oral application of the Owner, to which the Developer quite properly offered no opposition, I immediately made orders restraining ABCDRS from referring the adjudication application to an adjudicator for a period of seven days to enable a fresh interlocutory application and evidence to be filed and served, and for the interlocutory application to be heard. That period was later extended for a few more days.

30    ABCDRS is cited as a respondent to the interlocutory application but it has quite properly not opposed the relief and abides the Court’s decision.

Serious question to be tried

31    Although it was not initially part of the principal case, the Owner has sought to amend its case to seek a permanent injunction against the Developer from requesting ABCDRS, or any other authorised nominating authority under the Act, to nominate an adjudicator for the determination of any payment claim under the Act in respect of the development. The Owner submits that that is the final relief in aid of which it seeks an interlocutory injunction. It submits that there is a serious question to be tried in respect of that relief, in particular because it says that Mr Tozer’s adjudication determination is a valid and binding determination with the result that the Developer’s purported withdrawal of the adjudication application to Mr Tozer and its subsequent re-submission of the adjudication application first to Resolution Institute and subsequently to ABCDRS is invalid under the Act.

32    The Developer submits, in contrast, that Mr Tozer’s purported determination is invalid and a nullity for the reasons canvassed above, with the result that it is entitled under s 26(1)(b) to withdraw and re-submit the application. The Developer also submits that the granting of an interlocutory injunction as sought by the Owner is in effect final relief, rather than interim relief, because such relief will prevent it from exercising its rights to progress payments under the Act; once the parties’ final rights have been determined the Act will have no role to play. It submits that for that reason the Owner is required to establish the right that it seeks to protect on a final basis.

33    Turning to Mr Tozer’s adjudication determination, it is noteworthy that it was not submitted to Mr Tozer on behalf of the Developer that the Developer’s contract or arrangement with the Owner was such that it “under[took] to carry out construction work, or to supply related goods and services”. Rather, as appears from what I have set out at [18] above, the Developer claimed that its contract or arrangement was that it would act as a development company providing development and building advisory services, that it would engage the Builder under a construction contract to carry out the construction works and that it would manage the development on the Owner’s behalf. The closest it came to saying that it would undertake any construction work was its submission that its role included “causing a project to be constructed (through contractors)”.

34    Mr Tozer canvassed the Developer’s submissions at some length, including the characterisation of its role as being a project development company which included “causing a project to be constructed (through contractors)”. The two lines in Mr Tozer’s reasoning upon which the Developer seizes, namely that the building work “was not work that the [Developer] itself performed” and that “the [Developer] did not directly perform any construction work or provide related goods and services” must be understood in the context of the Developer’s submissions. Mr Tozer decided whether or not the Owner and the Developer were parties to a “construction contract” by responding to the case that was put to him by the Developer. The Developer put no case that it undertook to perform construction work, and it therefore lies ill in the Developer’s mouth to criticise Mr Tozer for not in those terms considering whether the Developer undertook to perform construction work. Mr Tozer’s reasoning that the Developer did not itself perform any construction work is a direct response to the submission that the Developer’s role was to cause the project to be constructed; he was in effect saying that the Developer did not undertake to perform construction work, whether itself or through sub- contractors, but rather it undertook to manage the development project by causing others to do the construction, which it did through a construction contract with the Builder.

35    In the circumstances, on a fair reading of Mr Tozer’s determination he did not ask himself the wrong question in relation to whether or not there was a “construction contract”. But in any event, even if he did, that error is immaterial in light of the case that was put on behalf of the Developer – had he asked whether the Developer undertook to carry out construction work there is no realistic possibility that he would have concluded that it did, in particular since it did not claim that it did. Also, for reasons I will turn to next, there is no realistic possibility that a different ultimate decision would have been made in view of the operation of s 7(3)(c)(iii). I am therefore satisfied that the Owner not only has a case at the level of a serious issue to be tried on this question, but that Mr Tozer’s determination that he lacked jurisdiction is not vitiated by jurisdictional error and is valid.

36    Turning now to the operation of s 7(3)(c)(iii), I reject the Developer’s submission that having found that there were provisions in the relevant contract or arrangement by which the Owner provided an indemnity to the Developer with respect to construction work carried out, or related goods and services supplied, within the meaning of that provision, the adjudicator was obliged to disregard the indemnity and in any event adjudicate the payment claim. Where part of a claim is said to be on the basis of an indemnity and another part is not, I accept that the application of s 7(3)(c)(iii) has the result that the latter part of the claim must still be adjudicated and that it is not the construction contract as a whole that is exempted from the application of the Act. That follows from the chapeau to sub-s (3), namely that the Act “does not apply to a construction contract to the extent to which it contains …”.

37    However, where, as here, the whole of the claim is said to be payable by the Owner as a consequence of its undertaking or obligation to “pay or reimburse the [Developer] for all the costs, expenses or liabilities that the [Developer] incurred in respect to the Project or in its role as project development company” (see [18(5)(c)] above]), the whole of the claim is excluded from adjudication under the Act. That is because “the extent to which [the contract] contains” an indemnity must include the liability or obligation to pay under the indemnity, otherwise s 7(3)(c)(iii) would do no work at all. That is to say, the payment obligation or liability under the indemnity is excluded from the application of the Act with the result that there is no remaining payment obligation in the relevant contract or arrangement to which the progress payment regime under the Act can apply. I therefore do not accept that there was any jurisdictional error by Mr Tozer in concluding that the Developer’s contended-for contract or arrangement, even if it was a “construction contract”, was exempted from the operation of the Act.

38    It follows that the Developer was not entitled to withdraw the adjudication application from Resolution Institute and re-submit it to ABCDRS.

39    There is a further consideration, which is that it is in my view an abuse of the procedures of the Act for the Developer to seek to re-agitate a claim which has already been decided. Indeed, two adjudicators, Mr Wood and Mr Tozer, have each decided that the Developer is not party to a “construction contract” with the Owner and that the contended-for contract or arrangement is in any event relevantly exempted from the application of the Act. It may be, as submitted by the Developer in reliance on NSW Netball Association Ltd v Probuild Construction (Aust) Pty Ltd [2015] NSWSC 1339 at [49] and Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWCA 172 at [37]-[43], that a determination vitiated by jurisdictional error is no determination at all and can be ignored. However, that does not mean that the repetitious use of the Act by resubmitting the same payment claim to successive adjudicators in the hope of a favourable outcome is not an abuse of the processes of the Act. See Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd [2022] ACTCA 42 at [92]-[94] per Lee J (Elkaim J agreeing).

40    As observed by Kennett J in Harlech (at [16]), the doctrine of abuse of process has been invoked by single judges in the Supreme Court of NSW in granting injunctive relief to restrain the pursuit of repetitious claims under the Act: Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd [2009] NSWSC 416 (Rein J); University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635 (Hammerschlag J); Urban Traders v Paul Michael [2009] NSWSC 1072 (McDougall J). It is well-established that the Act as a whole generally manifests an intention to prevent repetitious re-agitation of the same issues: Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69; 74 NSWLR 190 at [2] (Allsop P) and [70] (Macfarlan JA, Allsop P and Handley AJA agreeing).

Balance of convenience

41    Against the possibility that I am wrong in deciding at this stage that Mr Tozer’s determination is valid and that to submit another adjudication application is an abuse of process, and that the true position is that the Owner has at least a prima facie case, or a serious issue to be tried, in relation to those questions, it is necessary to consider whether the balance of convenience supports an interlocutory injunction at this stage.

42    In my view, the balance of convenience clearly favours the granting of an injunction. There are a number of considerations in that regard.

43    First, the Developer’s case, at least as presented to Mr Tozer, that it has a construction contract with the Owner which is not exempted from the application of the Act is, at best, weak.

44    Secondly, the Owner has been vexed on numerous occasions by having to respond to payment claims and adjudication applications served by the Developer, and for it to have to be further so vexed is particularly onerous. The Owner’s solicitor has estimated that preparing yet another adjudication response is expected to cost more than $36,000.In the meanwhile, the Owner is also conducting the present litigation against the Developer.

45    Thirdly, on the evidence before me, the Owner is currently engaged in completing the works for the development using funds borrowed from third-party lenders. The development is expected to be completed by 1 April 2023. Thereafter, sales of units in the development will be able to take place which will generate a source of funds which will enable it in due course to reimburse the Developer under the development contract, if indeed money is owed by the Owner to the Developer. Whether or not that is so will depend on the outcome in the principal case (including the cross-claim) which is expected to go to trial in 2023. The point is that the Developer is not apparently continuing to incur liabilities on the development, and the development will be completed and the issues between the parties determined at trial relatively soon.

46    The Developer submits that a factor counting against injunctive relief being granted is that the evidence shows that the Owner’s financial position shows net assets of negative $165,841 with the result that it is unlikely to be able to satisfy any liability under its undertaking as to damages. However, in view of the fact that determinations under the Act are “on account”, the development is close to completion and continuing work is apparently being undertaken by the Owner, it is not at all clear what damages the Developer might suffer as a consequence of the injunctive relief. It has not identified any. Moreover, if I required the Developer to secure its undertaking as to damages it is not likely to be able to do so at this stage.

Conclusion

47    For those reasons, the Owner should have injunctive relief against ABCDRS restraining it from referring the Developer’s adjudication application to an adjudicator and against the Developer restraining it from resubmitting its adjudication application to ABCDRS or another authorised nominating authority.

48    Having not heard the parties on costs, I will reserve the costs of the interlocutory application.

Associate:

Dated:    13 December 2022

SCHEDULE OF PARTIES