EnerMech Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd [2024] NSWCA 162
FACTS
The case of EnerMech Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd [2024] NSWCA 162 involved an appeal by EnerMech Pty Ltd (Appellant) of an adjudication decision. The original adjudication was in respect of a payment claim in the amount of about $10 million, issued on 8 June 2024 and a subsequent payment schedule issued by the respondents, essentially alleging no payment was due.
The adjudicator ruled in favour of the appellant at first instance, however the respondents then appealed the matter to the NSW Supreme court, seeking to have the adjudication quashed.
The respondents alleged that the payment claim was not in respect of work completed under a construction contract and was instead sought to recover an amount of $9,230,157.40, obtained by the respondents in exercise of a bank guarantee. The argument was that since the payments claimed were not for construction work, the adjudicator was not empowered to issue a decision under the NSW security of payment legislation.
ISSUE
Whether the amounts taken from bank guarantees were ‘payments under a construction contract’ for which adjudicators in NSW have jurisdiction to make decisions under the Building and Construction Industry Security of Payment Act 1999 (NSW)?
FINDING…
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