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ARTICLE · 08 OCTOBER 2014

Adjudication determination under the Construction Contracts Act 2004 as a basis for a statutory demand in WA

Clayton Utz
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A statutory demand based on an adjudication determination, without a court's leave, could be set aside by a court in WA.

AustraliaReal Estate and Construction
Stephen Boyle
Stephen Boyle
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Key Points:

A statutory demand based on an adjudication determination under the Construction Contracts Act 2004 (WA) without a court's leave, is at risk of being set-aside by the court.

On the basis of the recent decision in Kellogg Brown & Root v Doric [2014] WASC 206, there would appear to be a basis for a court to set aside a statutory demand under section 459 of the Corporations Act 2001 (Cth) founded on an adjudication determination under the Construction Contracts Act 2004 (WA), where a court has not first granted leave to enforce the determination under section 43(2) of the Construction Contracts Act.

In resisting an application for enforcement under section 43(2) of the Construction Contracts Act on the ground of jurisdictional error, the test is whether there is an arguable case that the determination is invalid.

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