Australia, June 30 -- New South Wales Land and Environment Court issued text of the following judgement on May 29:

1. On 11 April 2025, I delivered judgment in this matter: Tackelly No 8 Pty Ltd v Reward Interiors Pty Ltd [2025] NSWSC 300 (Judgment).

2. In the Judgment at [138], I directed the parties to confer and provide various agreed orders to give effect to my reasons or, if they were unable to agree, to provide the plaintiff's proposed orders and a document setting out the matters on which the parties disagree to my Associate, which they did.

3. After the filing of evidence and submissions, an oral hearing occurred concerning the appropriate final orders.

4. These reasons explain the appropriate form of orders to give effect to the Judgment.

Purported determination of the adjudication review application

5. Tackelly seeks an order, in the nature of certiorari, quashing the purported determination of the review adjudicator.

6. An order in the nature of certiorari has the effect of removing "legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights": Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at [28] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

7. Reward submits that no such order should be made. It contends that the review adjudicator merely expressed an "opinion as to his jurisdiction" such that there is no "purported exercise of power".

8. I reject that submission. The review adjudicator provided to the parties a document titled "Review Adjudication Determination" dated 13 January 2025 which contained the following:

REVIEW ADJUDICATOR'S DETERMINATION

I, Neil Kirkpatrick, as the review adjudicator duly appointed pursuant to s.44(1) of the Building and Construction Industry (Security of Payment) Act 2021 ("Act"), having considered all of the submissions properly made, determine that: [citing, in a footnote, s 36(4) of the Act as the purported source of his power, even though that provision is expressed as applying to adjudicators rather than review adjudicators]

(a) the Review Application does not comply with s.42(3), the Review Application was served out of time on the Review Respondent;

(b) I do not have jurisdiction to determine the Review Application; and

(c) the Review Applicant is to bear 100% of the adjudicator's fees and expenses, which amount to $7,920.00 including GST.

Date: 13 January 2025

9. It is clear that the review adjudicator was purporting to exercise statutory power conferred by the Building and Construction Industry (Security of Payment) Act 2021 (WA) (SOP Act) in determining whether he had jurisdiction or not. That purported determination had an "apparent legal effect": Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at [25] (French CJ, Crennan, Bell, Gageler and Keane JJ).

10. In the Judgment at [112], I found that the review adjudicator's purported determination was affected by jurisdictional error, as he erroneously concluded that he lacked jurisdiction to determine the adjudication review application. That meant that his purported determination was "lacking in legal force": Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33 at [48] (Kiefel CJ, Bell, Gageler and Keane JJ). Nevertheless, I consider it remains appropriate to make an order in the nature of the certiorari to "make the position clearer", and to also issue a declaration that the review adjudicator's purported determination was invalid: see eg Director of Public Prosecutions (NSW) v Kmetyk [2018] NSWCA 156 at [62] (Leeming JA, Meagher JA and Sackville AJA agreeing).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197152ae57cfe273b961c268)

Disclaimer: Curated by HT Syndication.