Australia, June 3 -- New South Wales Land and Environment Court issued text of the following judgement on May 5:

1. By notice of motion filed on 1 May 2025, VSD Investments Pty Ltd as trustee for The VSD Investments Trust (VSD), seeks a stay of orders made by Peden J (the primary judge) on 2 May 2025 which required funds in Court to be paid out to Builtcom Constructions Pty Ltd (Builtcom) "immediately". Her Honour stayed the operation of the order until the earlier of a further order, including by this Court, or 5pm on 6 May 2025.

Background

2. VSD, as principal, entered into a building contract with Builtcom, as builder, for construction work in Burwood. On 22 November 2024, Builtcom served on VSD a payment claim pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) for an amount in the order of $30.6 million in respect of work alleged to have been carried out between 1 October 2024 and 22 November 2024. On 4 December 2024, VSD served a payment schedule under the Act. On 17 December 2024, Builtcom lodged an adjudication application in respect of its payment claim. The matter was referred to Chris Thompson, the second respondent (the adjudicator), of Australian Building & Construction Dispute Resolution Service Pty Ltd (the third respondent). The second and third respondents filed submitting appearances in the Court below and can be expected to do so on appeal, as the second respondent has already done.

3. The adjudicator made a determination dated 3 February 2025 (the determination), which was released to the parties and which awarded Builtcom an amount in the order of $8.5 million including GST. The statutory scheme pursuant to which the process occurred is evident from the terms of the Act and has been the subject of several judgments of this Court: see, for example, Hynash Constructions Pty Ltd v BRP Industries Pty Ltd [2025] NSWCA 14 at [21]-[26] and [40]-[42] (Adamson JA, Bell CJ and Basten AJA agreeing).

4. The adjudicator declined to address several of the items which Builtcom claimed, including the 12 claims referred to in the extract below, on the following basis:

107. In my view, the 12 claims ... fall squarely within the ambit of Cardno. Clearly in relation to these 12 claims the materials provided by the Claimant in its adjudication application go outside the scope and information provided by the Claimant in its payment claim. The Cardno test is, if there is a new document that is only advanced with the adjudication application, the adjudicator is required to consider whether the presence of the same document in the original payment claim would be enough to change the valuation or reasoning in the payment schedule.

108. In applying the Cardno test to the present matter, it is irrefutable that the new documents, which were neither included, referenced or otherwise mentioned in the payment claim, were only advanced in the adjudication application. I am firmly of the view that had the documents relied upon and included in the adjudication application been present in the payment claim, the Respondent would most likely have changed its valuation or reasoning in its payment schedule.

109. Further as referenced in Cardno, as in this current matter, the Claimant included a single figure in its payment claim and did not provide sufficient details in its payment claim to enable the Respondent to accept or reject or properly assess each claim as the missing details were only included in the adjudication application. Once again, unfortunately for the Claimant it can only blame itself for the manner in which it prepared the payment claim in relation to these items and in the circumstances, I am of the view that the 12 claims (as set out in the table at paragraph 102 above) should each be valued at $Nil and value each as such.

5. In respect of the items for which this explanation was given by the adjudicator, there has been no actual adjudication on the merits as such. Rather, the adjudicator determined that the items must be valued at nil because Builtcom provided additional material in its adjudication application as to those items beyond that which it included in its payment claim.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1969ef89f69aae751bc681d5)

Disclaimer: Curated by HT Syndication.