Whether payment claim was valid —whether to grant relief where excess of jurisdiction is shown — whether statements in a payment claim comprise representations — whether respondent to an adjudication is entitled to recover costs of an adjudication response
The decision of New South Wales Netball Association Ltd v Probuild Construction (Aust) Pty Ltd  NSWSC 1339 confirms that certiorari is a discretionary remedy which, for good reason, may be withheld.
Probuild Constructions (defendant) served on Netball NSW (plaintiff) Payment Claim 23 and Payment Claim 24 under the same reference date. Payment Claim 24 was for $10,380,083.42. This claim was adjudicated and the adjudicator determined the adjudicated amount was $124,599.23.
The plaintiff had unsuccessfully sought an interlocutory injunction restraining the defendant from adjudicating Payment Claim 24 on the basis that it was invalid for breach of section 13(5) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act), it being the second claim in respect of the reference date. The defendant resisted the application, arguing the payment claim was not void.
Following the determination, the defendant joined issue with the plaintiff and sought a declaration that the determination is void. The plaintiff discontinued its claim. In a cross-summons, the plaintiff alleged that the defendant had engaged in misleading and deceptive conduct and sought damages for its costs incurred in responding to the adjudication application.
Stevenson J held that the Payment Claim was served in contravention of section 13(5) of the Act and that the adjudicator had no jurisdiction to deal with it. He noted that where excess of jurisdiction is shown, certiorari is granted almost as a right. It is however a discretionary remedy which, for good reason, can be withheld.
Matters relevant to the granting of relief include acquiescence, delay, abandonment or bad faith, which were not shown. Stevenson J did however, find that the defendant has sought to have it both ways; to approbate and reprobate, which is a 'powerful factor' relevant to the exercise of the Court's discretion. Stevenson J granted relief, despite the defendant's conduct, because the contract remained on foot and it is desirable that the status of the determination be resolved to prevent the re-agitiation of the issues before the adjudicator. There was no alternative remedy to dispose of the case.
In dismissing the plaintiff's claim for damages for misleading and deceptive conduct, Stevenson J held that a payment claim (like a pleading) is no more than a claim. It does not amount to a representation of the truth of the matters stated therein. Further, there was no evidence of reliance nor did the plaintiff suffer loss 'because of' what was stated in the payment claim. The plaintiff responded to the payment claim because of the exigencies imposed on it by the Act.