I am pleased to be able to note a couple more successes in the Supreme Court of South Australia. The first is in Hansen Yuncken Pty Ltd & Anor v Yuanda Australia Pty Ltd & Anor [2018] SASC 158,  a judgment of Justice Lovell on 5 October 2018. I appeared on behalf of Yuanda with Diana Tang of the New South Wales bar as my junior.

It was a rather unusual adjudication challenge arising out of the new Royal Adelaide Hospital (nRAH) project. Responding to a payment claim under the Building and Construction Industry Security of Payment Act 2009 (SA) the HYLC joint venture put some but not all of its cross claim for liquidated damages in issue. In the adjudication, the adjudicator Sean O’Sullivan allowed the cross claim for the amount that had been put in issue, but no more. HYLC then asked the adjudicator to correct his adjudication under the slip rule, to take account of all of its LD claims. Unsurprisingly, the adjudicator refused to do this and HYLC then made an application to the court for judicial review, not of the adjudication decision itself, but of the adjudicator’s refusal to apply the slip rule.

This was a novel approach which failed at every hurdle, the court finding:

• there was no jurisdictional basis for the challenge;
• in any event, there was no slip; and
• the adjudicator had not acted unreasonably.

The second decision was in the same matter. The very next day, Justice Lovell gave an ex tempore judgment dismissing HYLC’s application for a stay pending the results of the arbitration, now afoot, of the underlying disputes. The dismissal of that stay application appears to have been a conventional application of the relevant principles, and in particular an application of the “pay now, argue later” policy of the legislation.

HYLC then made an alternative application for a stay pending appeal. Justice Lovell rejected that application as well, but allowed Continue reading →