Adjudication determination quashed by Supreme Court for failure to give adequate reasons
Building and Construction Industry Security of Payment Act 1999 (NSW) – Adjudication determination quashed – failure to give adequate reasons
Author: Adam Rollnik
Court finds Security of Payment Act can apply to one-off residential developments
The Supreme Court of Victoria has found that a one-off special purpose company, incorporated for the sole purpose of carrying out a property development, was “in the business of building residences”, and therefore the Security of Payment Act applied to the dispute.
Similarities, not differences, the key to “substantial identity”
The Full Court of the Federal Court recently clarified the way in which the “side by side comparison” of trade marks is to be carried out in order to determine whether the two marks are substantially identical.
The clarification occurred in the context of an opposition to the registration of a trade mark pursuant to s 58 of the Trade Marks Act 1995 (Cth) (TMA). However, the Full Court’s clarification will have broader relevance as the question of whether a mark is substantially identical to another arises in several other sections of the TMA (for example sections 44, 120 and 122).
Trust dispute no bar to arbitration
Arbitration – scope of arbitration agreement – whether a dispute as to an alleged breach of trust constitutes a “matter” within the scope of an arbitration agreement – proper approach to construction of arbitration agreement – whether the arbitration agreement incapable of being performed – application for stay of proceedings under s 8 of Commercial Arbitration Act 2012 (WA)
Appealing a decision of VCAT to the Supreme Court (Trial Division) and Court of Appeal
This article considers the relevant Acts, Rules and Practice Notes that apply in appealing a VCAT decision, identifies the documents that must be prepared, and provides an overview of the relevant appeal steps.
Is the existence of a reference date under Security of Payment legislation a jurisdictional fact amenable to review?
The NSW Court of Appeal determined, unanimously, that a finding by an adjudicator of an available reference date is not a jurisdictional fact and therefore is not a precondition to the making of a valid payment claim. On this basis the adjudicator’s decision was not amenable to judicial review.
Enforcement of a foreign arbitral award in Australia – the requirement for “proper notice”
On an application to enforce a foreign arbitral award in the Federal Court, the respondent unsuccessfully sought to resist enforcement on the grounds that he had not received “proper notice” of the original arbitration proceeding.
Can judgment debts under Security of Payment legislation be enforced?
The NSW Security of Payment Act provides that an adjudication certificate may be filed in court as a judgment for a debt and may be enforced accordingly. A party argued that this enforcement regime, which does not allow judicial scrutiny of the debt, conflicts with federal law and is unlawful. By a 2-1 majority, the Full Court of the Federal Court found no conflict.