34
No contracting out
(1) The provisions
of this Act have effect despite any provision to the contrary in any contract.
(2) A provision of
any agreement (whether in writing or not):
(a) under which
the operation of this Act is, or is purported to be, excluded, modified or
restricted (or that has the effect of excluding, modifying or restricting the
operation of this Act), or
(b) that may
reasonably be construed as an attempt to deter a person from taking action under
this Act,
is void.
John
Holland Pty Ltd v Roads and Traffic Authority of New South Wales [2007] NSWCA
140 (18 June 2007): Giles JA, Tobias JA, McColl JA
KEY ISSUES:
whether retention for a purpose not within contractual purposes of holding
security - contractual mechanisms could result in contractor having to pay to
principal amounts of the adjudicated amounts - was within purpose of securing
satisfaction of contractor's obligations whether clause contravenes
s.34
John
Goss Projects v Leighton Contractors and Anor [2006] NSWSC 798 (14 August
2006): McDougall J
KEY ISSUES:
whether clause void by virtue of s.34
John
Holland v Rta [2006] NSWSC 874 (5 September 2006): McDougall J
KEY ISSUES:
whether certain contract clauses contravene s.34
Minister
for Commerce v Contrax Plumbing and Ors [2004] NSWSC 823 (13 September 2004):
McDougall J
KEY ISSUES:
whether adjudication determination should be quashed - whether adjudicator
erred in law in his construction of s 34 of the Act - whether adjudicator failed to
determine defendant's entitlement in accordance with the terms of the contract
- whether adjudicator erred in reaching his determination on a basis not
advanced by defendant in its payment claim and therefore not considered by
plaintiff in its payment schedule - whether adjudicator committed
jurisdictional error by determining the adjudication application on basis of
arguments advanced by defendant for first time in that application
The
Minister for Commerce (formerly Public Works &Services) v. Contrax
Plumbing (NSW) Pty. Ltd. &Ors. [2005] NSWCA 142 (6 May 2005): Hodgson JA,
Bryson JA, Brownie AJA
KEY ISSUES:
adjudication determination - alleged error in application of s.34 of the Act - whether
such errors could invalidate determination.
Barclay Mowlem Construction v Tesrol
Walsh Bay [2004] NSWSC 716 (13 August 2004) : McDougall J
KEY ISSUES: whether defendant relied upon representation to its detriment by taking no further steps under Act in respect of payment claim – whether estoppel defence prohibited by s34 – whether question to be resolved on application for summary judgment.
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