Facts
On 24 January 2005 Rojo Building Pty Limited (“Rojo”) entered into an agreement to construct a beach house for Jillcris Pty Limited (“Jillcris”).
On 2 December 2005 Rojo served a Payment Claim on Jillcris for $251,537.09. Jillcris did not serve a Payment Schedule within the timeframe required by the Building and Construction Industry Security of Payment Act (NSW) 1999 (“Act”). Rojo then proceeded to give a written notice to Jillcris of its intention to apply for Adjudication. This notice under the Act gave Jillcris a further opportunity to provide a Payment Schedule. Jillcris provided Payment Schedule before receiving Rojo’s notice.
Rojo then notified Jillcris that it did not intend to proceed with Adjudication.
Issue
The main issue in this case was whether Rojo was entitled to withdraw its notice of intention to proceed to Adjudication and pursue the alternative of recovering the claimed amount as a judgment debt?
The secondary issue was whether Rojo’s solicitor was authorised to sign and deliver Rojo’s Payment Claim.
Decision
The facts of the case established that Jillcris’ Payment Schedule was not provided in response to Rojo’s notice of its intention to apply for Adjudication. McDougall J found that neither the giving of this notice, or the provision of a Payment Schedule subsequent to the giving of this notice, constituted the making of an Adjudication Application. McDougall J found that the giving of such a notice is procedural and a precondition to the making of an Adjudication Application, however it does not amount to making an election under s 15(2)(a) to proceed to Adjudication.
With respect to the secondary issue, McDougall J found that Rojo’s solicitor was authorised to sign and deliver the Payment Claim and that the solicitor’s action in doing so must be construed as the action of Rojo.
Impact
The alternatives provided by s15(2)(a) of the Act (that is, an election between recovery of a debt or the making of an Adjudication Application) are alternative avenues of remedies and not elections of a right.
