Australia, Sept. 6 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 5:

1. By Summons filed on 2 June 2025, the Plaintiff, Lipman Pty Ltd, seeks an order setting aside, in whole or in part, an adjudication determination that was made in favour of the First Defendant, A-Civil Aust Pty Ltd, by the Second Defendant (the Adjudicator), pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act).

2. The Third Defendant is the nominating authority which appointed the Adjudicator. Neither the Adjudicator nor the Third Defendant played any active part in the proceeding.

3. Lipman contends that the adjudication determination should be set aside for jurisdictional error. The List Statement filed on 2 June 2025 asserted jurisdictional error on four grounds, together with a claim for misleading conduct pursuant to s 18 of the Australian Consumer Law. On 27 June 2025, Lipman confirmed that it did not advance its claim for misleading conduct in this proceeding and, on this basis, the matter was set down for hearing on 3 July 2025. On 30 June 2025, Lipman served its written submissions, together with a proposed Amended List Statement which removed its claim for misleading conduct and added a fifth ground for challenging the Adjudicator's determination (namely, legal unreasonableness).

4. At the commencement of the hearing on 3 July 2025, A-Civil opposed the grant of leave to amend, on the basis that A-Civil had not had sufficient time to consider or address this proposed fifth ground. I indicated that I would hear Lipman's submissions on the issue of legal unreasonableness, in order to understand the scope of the issues raised by this ground, before ruling on whether the amendment should be allowed. Subsequently, after the morning adjournment, A-Civil proposed "a way forward". This involved Lipman advancing submissions on the fifth ground "without having leave or otherwise to deal with the matter", and A-Civil addressing only on the first to fourth grounds at the hearing, and providing written submissions on the fifth ground after the hearing. Lipman did not object to this proposal. I was satisfied that A-Civil's proposal would ensure both that the hearing would proceed on 3 July 2025 and that all grounds of challenge to the adjudication determination would be addressed, and would therefore promote the just, quick and cheap resolution of the real issues in this proceeding. The hearing proceeded on this basis.

5. A-Civil subsequently provided written submissions which addressed the issue of legal unreasonableness on 11 July 2025, and Lipman provided written submissions in reply on 18 July 2025. A-Civil did not advance, in its supplementary written submissions, any contention that it was prejudiced as a result of the fifth ground being raised by Lipman, or that it was unable to deal with that ground.

6. In those circumstances, I have determined that the amendment should be allowed, so that all of the issues raised by Lipman in respect of the Adjudicator's determination can be addressed. Accordingly, I will make an order to this effect.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19877e53e159cdd68b99da8b)

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