Adjudicator's decision void because no "contract or other arrangement" found to exist between the parties
By Misha Rouyanian & Namira Rahman
In the case of Lendlease Engineering Pty Ltd v Timecon Pty Ltd [2019] NSWSC 685, the Supreme Court of New South Wales considered whether a "contract or other arrangement" existed within the meaning of the Building and Construction Industry Security of Payment Act 1999 (NSW) between the first defendant Timecon Pty Ltd and LLBJV, an unincorporated joint venture formed by Lendlease and Bouygues. The LLBJV sought a declaration that a determination purportedly made by an adjudicator under the SOP Act was void.
The determination related to an amount claimed by Timecon, under a contract or arrangement said to have been entered into between LLBJV and Timecon. Under this alleged agreement, Timecon purported to agree to a fee of $4.00 per tonne to permit the LLBJV to store spoil on their site which was produced by excavation and tunnelling work for the NorthConnex Project.
LLBJV contended that the adjudicator did not have jurisdiction to determine the payment claim because there was no "contract or other arrangement" between the parties. Alternatively, if one existed, it was not one under which Timecon undertook to carry out construction work or to supply related goods and services for the LLBJV.
Timecon argued that an arrangement did not need to be legally binding for it to be an "other arrangement" for the purposes of the SOP Act. As there was no authority supporting this argument, Ball J rejected this submission.