Facts
Construction & Contract Services provided expert engineering reports to Boutique Developments to assist in its litigation with CGU Insurance Pty Ltd. Construction & Contract Services proceeded to claim payment for the preparation and provision of the expert reports by means of the Building and Construction Industry Security of Payment Act (NSW) 1999 (“Act”).
Boutique Developments sought an injunction to restrain:
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Construction & Contract Services Pty Ltd (“Construction & Contract Services”) from taking any step to obtain or enforce any Adjudication determination; and
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the Institute of Arbitrators and Mediators Australia from taking any step to determine an Adjudication Application.
Issue
The question was whether the provision of the expert reports falls within the definition of “construction work” or work undertaken to supply “related goods and services” such that a person would be entitled to a progress payment under the Building and Construction Industry Security of Payment Act 1999, s 8(1).
Decision
Justice Gzell found that the work in question does not fall within either the definition of “construction work”, or the definition of “related goods and services”.
Justice Gzell found that the Adjudicator would be acting outside the scope of his jurisdiction if he proceeded to deal with the matter, however, declined to grant relief to Boutique Developments on the basis that it is for the Adjudicator to determine whether he has jurisdiction.
Impact
The issue of an Adjudicator’s jurisdiction is one to be determined by the Adjudicator.
