There are all sorts of friends in the law: learned friends, next friends, McKenzie friends and Amicus Curiae.
I was in the Supreme Court earlier today, waiting for a judgment, whilst a judgment in a previous matter was being delivered. The appellant was a gentleman who was representing himself, and he lost. The respondent’s counsel, unsurprisingly, asked for costs. The judge indicated that there were aspects of his decision which suggested to him that a mixed costs order might be appropriate and he asked the appellant if he had any submissions in that regard.
The appellant was like a rabbit in the headlights. He stood up, but was quite unable to say anything. For about a minute (which is a long time in these circumstances) he was unable to utter a single word. He was probably trying to take in the fact that he had lost the appeal. Total brain freeze.
Justice Blue this morning handed down judgment in the case of Tagara Builders V AP&L Services  SASC 30. The decision establishes that a contractor (or subcontractor) who does not hold the requisite builder’s licence under the Building Work Contractors Act 1995 (SA) is not entitled to make a claim under the Building and Construction Industry Security of Payment Act 2009 (SA), and that if he does so, the adjudicator has no jurisdiction. It appears that this is the first action in the Supreme Court of South Australia to proceed in the new and very welcome Fast Track Stream.
The construction industry in Australia seems to be going through rather a hard time at the moment, and there is a fair bit of insolvency about. There is topicality in the question,
“Can a company in liquidation avail itself of the Security of Payment Legislation by validly commencing an adjudication?”
It is not hard to find examples of liquidators who take the view that the Security of Payment Legislation is available for them, or of adjudicators who share that view, but what is the true legal position?
There appear to be no decided cases on the validity of an adjudication process where the claimant was in liquidation before commencing the adjudication. However, it is not a question that is entirely devoid of authority, and indeed the answer “no” to the question posed above emerges from Continue reading →
I see that my old friend Professor Philip Britton has yet again won the Hudson prize – this time jointly – being the annual prize of the Society of Construction Law in the UK. He has now won this prize several times, this one is called ‘Adjudication and the “residential occupier exception”: time for a rethink?’.
It is now a very long time since I first met Philip, making television programmes. In those days, it was quite common for solicitors in the UK to obtain their CPD points by watching videos on legal topics, and Philip ran a company which made these videos. Happily for me, he invited me to appear on a number of these, and it was all rather good fun. There is Continue reading →