Entries by bradburylegal

No notice needed: NSW Court of Appeal rules on enforcement of Security of Payment Act determination

In the recent unanimous decision of Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53, the Court of Appeal considered the enforcement of a judgment (pursuant to an adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act)) by garnishee order and without notice of the judgment being given to […]

Taking the Universal Serial Bus (USB) may result in a delayed service under the Security of Payment Act

In 1999, the New South Wales parliament legislated to create the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act). In 2000, IBM began selling the first USB flash drives commercially.  Other methods and mediums to quickly and conveniently communicate significant amounts of information have come and gone since 1999. It is therefore unsurprising that […]

‘The suspense is killing me’ – when do reference dates continue to accrue under the Security of Payment Act?

The High Court has determined that a reference date is a precondition to a valid payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act) with its landmark judgment in Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52.  Whether or not a reference date exists will […]

Summer of section 69: non-jurisdictional errors of law under the Security of Payment Act have had the best days of their lives

The New South Wales Court of Appeal has confirmed that an adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Security of Payment Act) can only be quashed if there is a jurisdictional error of law. The decision of the unanimous five-judge bench in Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty […]

Time not a great healer of defects claims

A recent Supreme Court decision has provided a timely reminder to building and construction litigants of the importance of considering limitation periods when prosecuting claims.  In The Owners – Strata Plan 7684I v Ceerose Pty Ltd [2016] NSWSC 1545 (Ceerose), the owners corporation did not have regard to the effect of relevant limitation periods and paid a hefty price. […]

NSW Supreme Court confirms ability to quash adjudication determinations for non-jurisdictional errors of law

The NSW Supreme Court in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2016] NSWSC 770 considered whether an adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SoPA) could be subject to judicial review, in circumstances where an adjudicator has made a non-jurisdictional error of law on the face of the […]

Performance Securities – You got to know why to hold ‘em

The ‘purpose’ of performance security In construction contracts, performance security is not only common, but it is a critical part of the commercial deal. This article looks at the relevance or importance of the link between the documented purpose of performance security and a beneficiary’s ability to have recourse to it. At a basic level, the purpose often […]