Building and Construction Industry Security of Payment Act 1999 (NSW) (Act) – first adjudicator unable to assess defendant's delay claim on evidence before him – whether an issue estoppel arose - whether second adjudication application for same delay damages is abuse of process
An attempt to rectify the shortcomings of evidence in a subsequent adjudication may be an abuse of process of the Act.
Ichor Constructions (defendant) served a payment claim on Ku-Ring-Gai Council (plaintiff) which included a claim for delay damages. The defendant made an adjudication application. In support of its claim for delay damages, the defendant relied on a report of iSet which 'found' that the defendant was entitled to damages for 115 days of delay (report).
The first adjudicator found that the report had serious shortcomings which he outlined in his determination. The first adjudicator concluded that he 'was unable to replicate the assessment process to assess the true extent of [the defendant's entitlement] to an EOT'. He made clear that he had not assessed the claim as Nil but rather, he was unable to assess it.
Some months later the defendant made a further payment claim which included the claim for the delay costs that the first adjudicator had been unable to assess. In support of a second adjudication claim, the defendant served a further report of iSet that had been prepared to address the shortcomings of the report raised by the first adjudicator.
The plaintiff contended that an issue estoppel arose preventing the defendant from making the second application. Alternatively, the second adjudication was an abuse of process of the Act.
Stevenson J held that there was no issue estoppel as there had been no issue determined adversely to the defendant.
His Honour, however, considered the second adjudication application to be an abuse of process of the Act.
His Honour considered that this case involved more than a mere repetition of a claim earlier made. The defendant had used the first adjudicator's observations as an 'advice on evidence' and had made a second attempt to prove the same case, requiring the plaintiff, for the second time, to meet it. This, his Honour considered, was an abuse of process.