The recent case of The New South Wales Netball Association Ltd v Probuild Constructions (Aust) Pty Ltd [2015] NSWSC 408 demonstrates that the courts will be unwilling to consider interlocutory applications that interfere with the statutory timetable for the determination of adjudication applications under Building and Construction Industry Security of Payment Act 1999 (NSW) (Act).

Facts

Netball NSW (plaintiff) sought an interlocutory injunction restraining Probuild Constructions (defendant) from taking any further steps to prosecute an adjudication application on the basis that the payment claim was invalid and that granting an injunction early in the proceedings would spare the plaintiff from incurring costs in preparing an adjudication response.

The defendant claimed that the payment claim was valid and that the balance of convenience was against granting an injunction as it would prevent the defendant from proceeding in accordance with the Act and cause the defendant to lose the benefit of security under section 25 of the Act (which would be required from the plaintiff in order to commence proceedings to set any judgment aside).

Decision

Ball J refused the injunction sought by the plaintiff, however granted an injunction until further order restraining the defendant from taking steps to file in any court any adjudication certificate obtained as a result of the adjudication process.

His Honour held that notwithstanding the validity of the Plaintiff's claim, on the balance of convenience, the prejudice suffered by the defendant would far outweigh the prejudice suffered by the plaintiff if the injunction sought was granted.

Highlighting the importance of the statutory timetable for the determination of adjudication applications under the Act, his Honour determined that the court does not have power to adjust the statutory timetable and ought not grant an injunction where it interferes with the timetable and processes set out in the Act for the determination of adjudication applications.

Considering the defendant's claims regarding balance of convenience and enforcement under section 25 of the Act, his Honour noted that security only applies if a respondent commences proceedings to have a judgment based on an adjudication determination set aside. His Honour therefore considered it appropriate to grant an injunction restraining the defendant from taking steps to enforce any determination it obtained on the basis that the defendant could make an application for the injunction to be discussed once the amount of any determination was known and the plaintiff was in a position to provide evidence of its ability to provide security for the set amount.