1155 Nepean Hwy v Promax Buildings
[2020] VSC 398
•7 July 2020
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMERCIAL COURT TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST | Not Restricted |
S ECI 2019 4246
| 1155 NEPEAN HIGHWAY PTY LTD (ACN 630 087 428) | Plaintiff |
| v | |
| PROMAX BUILDINGS PTY LTD (ACN 630 303 801) & ANOR | Defendants |
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JUDGE: | Digby J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 September 2019, 14 and 18 October 2019 and 5 March 2020 |
DATE OF JUDGMENT: | 7 July 2020 |
CASE MAY BE CITED AS: | 1155 Nepean Hwy v Promax Buildings |
MEDIUM NEUTRAL CITATION: | [2020] VSC 398 |
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ADMINISTRATIVE LAW – Judicial review – Injunction enjoining the Adjudicator from making any adjudication determination – Injunction enjoining first defendant from making any further adjudication application – Compliance with service requirements of s 18(5) of the Building and Construction Industry Security of Payment Act 2002 (Vic) – Whether service required as soon as practicable or within a reasonable time under s 18(5) of the Building and Construction Industry Security of Payment Act 2002 (Vic) - Validity of new adjudication application under s 28 of the Building and Construction Industry Security of Payment Act 2002 (Vic) – Time for service of adjudication application - Building and Construction Industry Security of Payment Act 2002 (Vic), ss 18(5), 20 , 22, 28.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Robins QC with Mr A Rollnik | Arnold Bloch Leibler |
| For the First Defendant | Mr J Twigg QC with Ms J Gregory | MinterEllison |
HIS HONOUR:
General summary of overall background
In July 2019 the first defendant Promax Buildings Pty Ltd (Promax) issued a payment claim pursuant to s 14 of the Building and Construction Industry Security of Payment Act 2002 (Vic) (SoP Act) in the sum of approximately $2 million (July 2019 Payment Claim) in relation to construction work and related goods and services to be provided pursuant to a Contract entered into on 2 January 2019 (Contract) between Promax and 1155 Nepean Highway Pty Ltd (plaintiff) in relation to building works at 1155–1157 Nepean Highway, Highett in the State of Victoria (Highett Project). No payment schedule was provided by the plaintiff, pursuant to s 15 of the SoP Act, in respect of Promax’s July 2019 Payment Claim.
Promax has not been paid any of the sum which formed part of the July 2019 Payment Claim.
On 15 August 2019, Promax filed with the authorised nominating authority, and on 16 August 2019 served on the plaintiff, its adjudication application dated 15 August 2019 (August 2019 Adjudication Application), pursuant to s 18 of the SoP Act in relation to the outstanding July 2019 Payment Claim.
The plaintiff asserts that Promax has failed to compliantly serve its August 2019 Adjudication Application pursuant to s 18(5) of the SoP Act.
On 23 August 2019 Promax sought to serve a further copy of the August 2019 Adjudication Application on the plaintiff. Promax ultimately withdrew the August 2019 Adjudication Application on 5 September 2019.
On 10 September 2019, pursuant to s 28(2)(b) of the SoP Act, Promax made a new Adjudication Application in relation to its July 2019 Payment Claim and served the plaintiff with that adjudication application on 11 September 2019 (September 2019 Adjudication Application).
The second defendant, Mr John McMullan (Adjudicator),[1] delivered his Adjudication Determination dated 29 September 2019 (September 2019 Adjudication Determination) to the parties on 30 September 2019.
[1]By letter dated 18 September 2019 the second defendant advised the Court he does not intend to take any active role in the proceeding and will abide the decision of the Court, save for any costs order being considered against him.
The plaintiff continues to assert that the adjudication applications are invalid and ineffectual and as a consequence that the September 2019 Adjudication Determination is void and should be quashed because:
(a) the August 2019 Adjudication Application was not served on the plaintiff pursuant to s 18(5) of the SoP Act ‘as soon as practicable’;
(b) as a result the August 2019 Adjudication Application was not a valid application;
(c) further consequently because no valid adjudication application existed, Promax’s September 2019 Adjudication Application pursuant to s 28(2) of the SoP Act was also invalid and ineffectual; and
(d) as a consequence of the above, the Adjudicator lacked jurisdiction resulting in his September 2019 Adjudication Determination being invalid and void and should be quashed.
On 6 February 2020, Promax issued a payment claim for further payment for work done in connection with the Highett Project (February 2020 Payment Claim).
By Summons dated 3 March 2020 the plaintiff also sought injunctive relief against Promax to enjoin it from making an adjudication application to any authorised nominating authority under the SoP Act in respect of the February 2020 Payment Claim.
The Plaintiff’s proceeding
By Originating Motion and Summons dated 17 September 2019, the plaintiff sought an injunction restraining:
(a) the Adjudicator from making an adjudication determination pursuant to s 28 of the SoP Act in connection with the September 2019 Adjudication Application in relation to the Highett Project;
(b) Promax from making any further adjudication application under s 28 of the SoP Act in relation to the Highett Project, and
(c) associated and ancillary orders.
Before the Originating Motion and Summons of 17 September 2019 came on for hearing the Adjudicator delivered his September 2019 Adjudication Determination on 30 September 2019. That Adjudication Determination was in Promax's favour in the amount of $2,041,582.15 (incl GST) in relation to Promax’s July 2019 Payment Claim issued on 15 July 2019 for works undertaken by it in connection with the Highett Project.
The Originating Motion and Summons came on for a brief hearing on 20 September 2019[2] wherein parties agreed to adjourn it to 30 September 2019. Orders and undertakings were made including:
[2]T1-14 (20.9.2019).
(a) the proceeding be adjourned for hearing on 30 September 2019 at 10.30am on an estimate of one day;
(b) by 4.00pm on 24 September 2019, the parties file and serve any further affidavits; and
(c) by 4.00pm on 26 September 2019, the parties file any further written submissions.
The parties sought further orders by consent on 26 September 2019 adjourning the hearing to 3 October 2019.
On 1 October 2019, the plaintiff filed and served an Amended Originating Motion and Amended Summons seeking relief against Promax and the Adjudicator in relation to the September 2019 Adjudication Determination in the following terms:
(a) a declaration that the September 2019 Adjudication Determination was tainted by jurisdictional error and is void in respect of specified paragraphs and referenced items;
(b) interlocutory and final injunctions restraining Promax from enforcing the September 2019 Adjudication Determination without severing the void findings and amounts;
(c) an order that the September 2019 Adjudication Determination is quashed in respect of the matters set out in the specified paragraphs and referenced items.
Plaintiff’s Amended Originating Motion dated 1 October 2019
By its Amended Originating Motion of 1 October 2019 the plaintiff seeks:
A.Further or alternatively to the relief claimed in paragraphs [1] to [6] below, on 30 September 2019 the second defendant delivered his purported Adjudication Determination (the purported Adjudication Determination).
B.Insofar as the purported Adjudication Determination expressed a conclusion or findings as to the jurisdictional matters raised by the plaintiff under sections 18 and 28 of the Act, then such conclusion or findings are in no way binding on this honourable Court or the parties and are of no effect.
C.Contrary to sections 11 and 23(4) of the Act, the ‘findings’ set out in paragraph [103] reference items [18.1] through to [18.9] of the purported Adjudication Determination fail to demonstrate any process of assessment by the second defendant of the value of the claim consistent with the Act or the Contract, and the process of reasoning followed by him, as disclosed in the purported Adjudication Determination, is not countenanced by the Act in that:
(i)The second defendant in every instance merely adopted the amount claimed by the first defendant in the purported trade breakdown and budget stated in the payment claim;
(ii)The second defendant erroneously assumed, without any basis in fact or law that the purported ‘trade breakdown’ or ‘budget’ referred to in the payment claim somehow formed part of the Contract between the plaintiff and the first defendant, whereas the purported ‘trade breakdown’ or ‘budget’ were at best subjective internal working by the first defendant which were never adopted or agreed to by the plaintiff, nor referred to in the Contract;
(iii)The second defendant failed to undertake any independent assessment or valuation of the work, rates and percentages asserted by the first defendant in the purported ‘trade breakdown’ or ‘budget’ in respect of paragraph [103] reference items [18.1] through to [18.9] as required by sections 11 and 23(4) of the Act; and
(iv)The second defendant gave undue weight to the irrelevant fact that the plaintiff had failed to serve a payment schedule expressly disputing the said items, which fact did not relieve him of his obligation to undertake a proper determination of the value of the works claimed by the first defendant consistent with sections 11 and 23(4) of the Act.
D.By reason of the matters in paragraph C above, the purported Adjudication Determination in respect of paragraph [103] reference items [18.1] through to [18.9] was tainted with jurisdictional error and is void to the extent of each of those items and the sums referable to those items ought to be severed from it.
E.By reason of the mattes in paragraph D above, the finding in paragraph [127] of the purported Adjudication Determination is tainted by jurisdictional error and is void, or alternatively constitutes an error of law on the face of the record.
THE PLAINTIFF SEEKS the following relief or remedy:
1.Dispense with the requirements of Rules 5.03(1) and 8.02.
2.The Plaintiff is authorised to commenced the proceeding by Originating Motion in Form 5C.
3.An injunction, both interlocutory and final, enjoining the second defendant from making any adjudication determination pursuant to the Building and Construction Industry Security of Payment Act 2002 (Vic) (Act) in connection with the adjudication application, dated 10 September 2019, made by the first defendant against the plaintiff under s 28 of the Act, in connection with the works carried out by the first defendant at 1155-1157 Nepean Highway, Highett Vic 3190 (Highett Project).
4.Further, an injunction both interlocutory and final, enjoining the first defendant from making any further adjudication application under s 28 of the Act in connection with the adjudication application, purportedly made by the first defendant in relation to the Highett Project, that was uploaded to Adjudicate Today’s online lockbox facility on 15 August 2019 (15 August Adjudication Application).
5.A declaration that the 15 August Adjudication Application is void and unlawful.
6.Further or alternatively, a declaration that the first defendant is not entitled at law or under the Act to make any further adjudication application under s 28 of the Act, in connection with the 15 August Adjudication Application.
6A.A declaration that the purported Adjudication Determination delivered on 30 September 2019 by the second defendant was tainted by jurisdictional error and is void in respect of:
(i)paragraph [103] reference item [18.1] through to [18.9];
(ii)paragraphs [105]-[109] to the extent that those paragraphs incorporate the sums set out in paragraph [103] reference items [18.1] through to [18.9]; and
(iii)paragraph [127] and the purported cost order made against the plaintiff.
6B.Interlocutory and final injunctions restraining the first defendant from taking any step to enforce the purported Adjudication Determination delivered on 30 September 2019 by the second defendant without severing therefrom the void findings and amounts set out in paragraph [103] reference items [18.1] through to [18.9] and/or paragraph [127] thereof.
6C.An order that the purported Adjudication Determination delivered on 30 September 2019 by the second defendant is quashed in respect of the matters set out in:
(i)paragraph [103] reference item [18.1] through to [18.9];
(ii)paragraphs [105]-[109] to the extent that those paragraphs incorporate the sums set out in paragraphs [103] reference items [18.1] through to [18.9]; and
(iii)paragraph [127] and the purported cost order made against the plaintiff.
7.Costs (against the first defendant only).
8.Such further or other orders as to this Honourable Court deems necessary or appropriate.
On 2 October 2019, the plaintiff paid $2,041,582.15 into its solicitors controlled money account in accordance with an undertaking of Promax in the following terms:
By its Counsel, the first defendant undertakes that subject to the payment by the plaintiff into a controlled-interest-bearing account of any sum determined by the second defendant, upon his Adjudication Determination, to be due, and any costs determined by the second defendant, [Promax] will not take any step to enforce any such Determination until the hearing and determination of this proceeding. (Undertaking)
On 2 October 2019, the parties sought a further adjournment of the hearing of the plaintiff’s Amended Summons dated 1 October 2019 to 14 October 2019.
On 6 February 2020, Promax issued the February 2020 Payment Claim for further payment for work done in connection with the Highett Project.
The plaintiff contends that the work identified and the amounts claimed in the February 2020 Payment Claim are substantially the same as the work described and the amounts claimed in the July 2019 Payment Claim. The plaintiff submits that the amount of new work claimed in the February 2020 Payment Claim is $70,308.55 (excl GST) for ‘Preliminaries’, ‘Structural Engineering Fees’ and ‘Nature Strip Maintenance’.
On 20 February 2020, the plaintiff issued a payment schedule to Promax pursuant to s 15 of the SoP Act in relation to the February 2020 Payment Claim, with a scheduled amount of $Nil.
By Summons dated 3 March 2020 the plaintiff also sought injunctive relief against Promax to enjoin it from making an adjudication application to any authorised nominating authority under the SoP Act in connection with the February 2020 Payment Claim.
On 5 March 2020, at the hearing of the plaintiff’s Summons dated 3 March 2020, a holding position was agreed between the plaintiff and Promax in relation to the February 2020 Payment Claim. That agreement is reflected in consent Orders which were made on 5 March 2020.[3]
[3]Reasons, [59].
Relief ultimately sought by the plaintiff
As a result of the September 2019 Adjudication Determination, the plaintiff no longer seeks interlocutory relief to restrain the Adjudicator. The plaintiff does however continue to seek orders setting aside and quashing the September 2019 Adjudication Determination, or alternatively Items [18.1] to [18.9] of paragraph [103] of the Adjudication Determination which deals with the Adjudicator’s valuations.
Furthermore, the plaintiff’s claim that the August 2019 Adjudication Application was void and unlawful on the basis of non-compliant service under s 18(5) of the SoP Act and the plaintiff’s related claims that as a result service of the August 2019 Adjudication Application on 23 August 2019 and the service by Promax of the new September 2019 Adjudication Application were also ineffective and void because the August 2019 Adjudication Application was not valid, are all pursued by the plaintiff.
Detailed Factual background
The plaintiff is a property development company incorporated for the purposes of developing land,[4] and Promax is a large scale building company.[5]
[4]See Affidavit of Andrew Blyth, 17 September 2019 (First Blyth Affidavit), [4].
[5]Ibid [5].
The Adjudicator is nominated by Rialto Adjudications Pty Ltd (Rialto Adjudications), an authorised nominating authority under the SoP Act.
Prior to January 2019 the plaintiff (or its related company LDS Lifestyle Pty Ltd) and Promax (or related companies), had previously entered into contracts in relation to construction projects at 164-170 Manningham Road, Bulleen (Bulleen Project) and 135-137 Neerim Road, Glen Huntly (Glen Huntly Project) both in the State of Victoria.[6]
[6]Ibid [7] and [8].
On 2 January 2019, the plaintiff and Promax entered the Contract, pursuant to which the plaintiff engaged Promax to carry our residential building works at the Highett Project.
On 15 July 2019, Promax served the July 2019 Payment Claim on the plaintiff. The plaintiff failed to serve a payment schedule in respect of the July 2019 Payment Claim, before the due date of 29 July 2019.[7] As a result of that failure, pursuant to s 15(4) of the SoP Act, the plaintiff became liable to pay the claimed amount of $2,017,382.15.[8] The plaintiff also thereafter failed to pay the whole or any part of the claimed amount by the due date for payment, which was 5 August 2019.[9]
[7]This date is 10 business days after the payment claim was issued as per s 15(4)(b)(ii) of the SoP Act and clause N5.1 of the Contract dated 2 January 2019. A copy of the contract is included as Exhibit ‘AIB-6’ to the First Blyth Affidavit.
[8]SoP Act, ss 16(1)(a) and 18(1)(b).
[9]Clause N9.1 of the Contract dated 2 January 2019. See First Blyth Affidavit, Exhibit ‘AIB-6’ and s 12(1) of the SoP Act.
As a result of the above, Promax became entitled to either recover the unpaid amount as a debt due in a court of competent jurisdiction or make an adjudication application under the SoP Act.[10] Promax adopted the latter course and made an adjudication application pursuant to s 18 of the SoP Act.
[10]SoP Act, s 16(2)(a).
On 7 August 2019, Promax notified the plaintiff of its intention to apply for adjudication in respect of the July 2019 Payment Claim[11] and, pursuant to s 18(2)(b) and s 18(3)(e) of the SoP Act, gave the plaintiff an opportunity to provide a payment schedule to Promax. The plaintiff did not provide a payment schedule as provided for under s 18(2)(b) of the SoP Act.
[11]Affidavit of Andrew Blyth, 19 September 2019 (Supplemental Blyth Affidavit), [3], Exhibit ‘AIB-27’.
On 15 August 2019, the solicitors for Promax (MinterEllison[12]) made an adjudication application to an authorised nominating authority, Adjudicate Today Pty Ltd (Adjudicate Today):
[12]MinterEllison acts for Promax and two of its related entities in relation to three separate construction projects. More specifically, MinterEllison acts for:
(a)Promax in relation to the construction of a building in Highett undertaken for the plaintiff (Highett Project);
(b)Promax Developments Pty Ltd in relation to the construction of a building in Glen Huntly undertaken for LDS Lifestyle Pty Ltd (Glen Huntly Project); and
(c)Promax Development and Construction Pty Ltd in relation to the construction of a building in Bulleen undertaken for LDS Lifestyle Pty Ltd (Bulleen Project).
(a) in respect of the Highett Project, by the August 2019 Adjudication Application;
(b) for Promax Developments Pty Ltd in relation to the Glen Huntly Project (Glen Huntly Adjudication Application); and
(c) for Promax Development and Construction Pty Ltd in relation to the Bulleen Project (Bulleen Adjudication Application).[13]
[13]The application for the Highett Project was made at 10:59pm and the other two applications were uploaded around this time. See Affidavit of Duncan MacKenzie, 19 September 2019 (MacKenzie Affidavit), Exhibit ‘DJM-04’ (Highett Project), Exhibit ‘DJM-02’ (Glen Huntly Project) and Exhibit ‘DJM-07’ (Bulleen Project).
Each of the three applications was made by electronically uploading the application documents to an authorised lockbox facility accessible from the website of Adjudicate Today, the authorised nominating authority pursuant to s 4 of the SoP Act.[14]
[14]MacKenzie Affidavit, [5]-[17].
On 16 August 2019, MinterEllison sought to serve the August 2019 Adjudication Application on the plaintiff, together with the application materials for the Glen Huntly Project and Bulleen Project.[15]
[15]First Blyth Affidavit, [13] and [17]-[22].
An employee of LDS Lifestyle Pty Ltd accepted service of the materials for all three applications and counter-signed the covering letters attached to those applications.[16]
[16]MacKenzie Affidavit, [31], Exhibit ‘DJM-12’; First Blyth Affidavit, Exhibit ‘AIB-13’, Statutory Declaration of Duncan MacKenzie, 22 August 2019, (MacKenzie Statutory Declaration) [8.1]-[8.3]. The statutory declaration appears on pages [13]-[18] of the exhibit.
The plaintiff and LDS Lifestyle Pty Ltd, the proprietor of the Glen Huntly Project, are related entities and share a registered office and principal place of business. The plaintiff describes LDS Lifestyle Pty Ltd as the ‘owner of the Glen Huntly Project’.[17] LDS Lifestyle Pty Ltd is also the proprietor of the Bulleen Project.
[17]T12.24-29 (14.10.2019); refer also First Blyth Affidavit, [8], Plaintiff Submissions, 19 September 2019, [6] and MacKenzie Affidavit, [14]/
Seven folders of material were provided by Promax to the plaintiff on 16 August 2019. Two folders related to the August 2019 Adjudication Application in relation to the Highett Project.[18] Two Highett Project documents were incorrectly included in the Glen Huntly Adjudication Application folders (a one page covering letter from MinterEllison and a one page Adjudicate Today application form). A Statutory Declaration relating to the Highett Project was also included in the Bulleen Project materials.[19]
[18]First Blyth Affidavit, Exhibit ‘AIB-9’.
[19]Statutory Declaration of Ozan Girgin, 15 August 2019; Exhibit ‘AIB-3’, exhibited at [7(b)] of Exhibit ‘DJM-11’ (Statutory Declaration of Andrew Blyth, 23 August 2019), in turn exhibited at Appendix A to the MacKenzie Affidavit.
The seven folders provided by Promax on 16 August 2019 were in hard copy,[20] together with an index[21] and the Highett Project documents.[22] Further Promax asserts that those materials could have been sorted into a single bundled folder by moving three documents.[23]
[20]First Blythe Affidavit, [13].
[21]A copy of the index is included as Exhibit ‘AIB-10’.
[22]An additional index of documents was provided by email from MinterEllison to ABL dated 21 August 2019. Exhibit ‘DJM-02’ MacKenzie Statutory Declaration, included in Exhibit ‘AIB-13’ to the First Blythe Affidavit).
[23]First Blyth Affidavit, Exhibit ‘AIB-13’, MacKenzie Statutory Declaration, [3.3], [4.3] and [5.3]. The statutory declaration appears on pages 13 to 18 of the exhibit.
On 17 August 2019, the plaintiff provided its solicitors (Arnold Bloch Leibler) with all documents which comprised the August 2019 Adjudication Application.[24]
[24]First Blyth Affidavit, [14].
On 20 August 2019, Adjudicate Today communicated with both Promax and the plaintiff advising that Mr Kevin Moore (Adjudicator Moore) had accepted the August 2019 Adjudication Application as Adjudicator, and attached a notice of the Adjudicator’s acceptance.[25]
[25]Ibid Exhibit ‘AIB-11’.
On 20 August 2019 Arnold Bloch Leibler also wrote to Adjudicator Moore, copying Promax into that communication, advising among other things that the August 2019 Adjudication Application served on it by Promax did not ‘identify the payment claim … to which it relates’, and accordingly was not an adjudication application under the SoP Act. The plaintiff advised that it was therefore of the view that the Adjudicator had no jurisdiction to hear and determine the matter.[26]
[26]Ibid [25]; Plaintiff Submissions, 19 September 2019, [10].
On 21 August 2019, Arnold Bloch Leibler notified MinterEllison that it:[27]
(a) acted for the plaintiff in respect of the August 2019 Adjudication Application and for LDS Lifestyle Pty Ltd in relation to the Glen Huntly Adjudication Application and the Bulleen Adjudication Application; and
(b) had received copies of all three of the cover letters, Adjudicate Today application forms and submissions for each of the three applications.
[27]MacKenzie Affidavit, [20] and Exhibit ‘DJM-08’.
On 21 August 2019, MinterEllison responded providing an index of the documents comprising the August 2019 Adjudication Application to Arnold Bloch Leibler.[28]
[28]First Blyth Affidavit, Exhibit ‘AIB-13’, email from Peter Wood to John Mengolian on 21 August 2019 at 7:57pm with attachments. The email appears at pages 78 to 84 of the exhibit.
On 23 August 2019, MinterEllison served a further copy of the August 2019 Adjudication Application on the plaintiff.[29]
[29]MacKenzie Affidavit, [22]; First Blyth Affidavit, [28].
Adjudicator Moore did not seek an extension of time from Promax within which to determine the application.[30] Section 22(4) of the SoP Act, required that Adjudicator Moore do so on or before 3 September 2019 (10 business days after 20 August 2019).
[30]Adjudicators are entitled to seek an extension of time under s 22(4)(b) of the SoP Act.
On 4 September 2019 Adjudicate Today sent an email to the parties advising that Adjudicator Moore had not made an adjudication determination within the time prescribed by the SoP Act.[31] That email also stated as follows:
Dear Sirs
We refer to the above mentioned adjudication application and confirm that the adjudicator, Mr Kevin Moore, has not made a determination within the timeframe stipulated in s.28(1)(b) of the Building and Construction Industry Security of Payment Act 2002 (Vic) (the Act).
We confirm that the file is now closed with no fees incurred.
Without giving legal advice, we refer the claimant to section 28 of the Act with regard to making a new application under certain circumstances.
Please do not hesitate to contact us should you have any questions.
[31]First Blyth Affidavit, Exhibit ‘AIB-14’.
On 5 September 2019 MinterEllison sent a notice pursuant to s 28(2)(b) of the SoP Act to Adjudicate Today advising that Promax had withdrawn its August 2019 Adjudication Application.[32]
[32]Ibid Exhibit ‘AIB-15’.
On 10 September 2019 pursuant to s 18 of the SoP Act, Promax made a fresh application for adjudication of the July 2019 Payment Claim to Rialto Adjudications by electronically uploading the documents comprising that application to the website of Rialto Adjudications.
On 11 September 2019 copies of the September 2019 Adjudication Application were hand delivered to both the plaintiff’s principal place of business and to the offices of Rialto Adjudications.[33]
[33]Ibid Exhibit ‘AIB-13’, MacKenzie Statutory Declaration, [8.1]–[8.3]. The statutory declaration appears on pages 13 to 18 of the exhibit.
On 11 September 2019 the Adjudicator sent an email to the parties attaching a notice of acceptance of the September 2019 Adjudication Application.[34]
[34]First Blyth Affidavit, Exhibit ‘AIB-17’.
On 17 September 2019 the plaintiff commenced this proceeding.
In its submissions dated 19 September 2019 the plaintiff summarised its case on the above issues as follows:
… the 15 August Adjudication Application, was not served on 1155NH as required by the Act. The 6 business day delay between filing and service was not service as soon as practicable, as required by the Act. If the 15 August Adjudication Application was not an adjudication application under the Act, then it follows that any further (purported) adjudication application under s 28(2) must fail, because that section proceeds on the footing that there was a valid adjudication application in the first instance.
On 24 September 2019 the Adjudicator sent an email to the parties requesting that Promax agree to extend the time for making his determination by two business days pursuant to s 22(4)(b) of the SoP Act. Later that same day, MinterEllison confirmed by email that Promax agreed to the proposed extension.
On 30 September 2019 the Adjudicator provided the parties his September 2019 Adjudication Determination.[35] Thereby the Adjudicator determined the September 2019 Adjudication Application and decided the adjudicated amount payable by the plaintiff to Promax was $2,017,382.15 (incl GST). That adjudicated amount became payable on 5 August 2019.
[35]Affidavit of Isobel Carmody, 1 October 2019, Exhibit ‘IJC-01’.
The September 2019 Adjudication Determination also stated as follows in relation to the jurisdictional challenges raised by the plaintiff in these proceedings:
[74]For the reasons set out below, in my view, the Application for Adjudication is not invalid.
[75]Firstly, in my view, the Application for Adjudication was, in fact, made to Adjudicate Today on 15 August 2019. In my view, the service of a copy of the Application for Adjudication on the respondent is not, itself, a requirement for validity, but rather is a matter that goes to the timing of the Adjudication Response (if any). Section 18(5) expressly provides that a copy of the adjudication application must be served on the respondent, but does not provide that a failure to comply with the provision invalidates an Application for Adjudication, nor does Section 18(5) expressly provide the time within which a copy of the Application for Adjudication must be served on the respondent. In the absence of such express language, in my view, the failure to provide a copy of the Application for Adjudication to the respondent does not, on its own, have the effect that an Application for Adjudication is invalid.
[76]Secondly, in my view, the respondent did, in fact, receive a copy of the Application for Adjudication on 16 August 2019 (albeit that the cover letters in relation to the three Applications for Adjudication delivered to Adjudicate Today and to the respondent were not in the correct folders , and that two of the statutory declarations had been switched).
[77]Thirdly, in my view, the respondent, no later than after receiving the MinterEllison email dated 21 August 2019, was, in fact, aware of the filed copy of, and the correct attachments to, the Application for Adjudication. In my view, the delay between 15 August 2019, when the Application for Adjudication was lodged electronically with Adjudicate Today, and 21 August 2019, when the Index of the documents, the previously served documents on the respondent on 16 August 2019, comprising the Application for Adjudication, was confirmed in the email dated 21 August 2019 from MinterEllison to Arnold Bloch Leibler, meant that the delay (if any) in service of a copy of the Application for Adjudication on the respondent had no practical effect.
[78]Fourthly, if I am wrong in my view that the respondent is to be taken as having received a copy of the Adjudication Response on 16 August 2019, then the respondent received a copy of the Adjudication Response no later than 23 August 2019, when the fresh copy of the Application for Adjudication was delivered to the respondent. In my view, the delay between 15 August 2019, when the Application for Adjudication was lodged electronically with Adjudicate Today, and 23 August 2019, when the further, correctly collated, hard copy of the Application for Adjudication was served on the respondent, had no practical effect.
[79]Fifthly, in this instance, the respondent failed to deliver a payment schedule in response to, either, the Payment Claim dated 15 July 2019 or the Section 18(2) Notice dated 7 August 2019. Accordingly, the respondent was, pursuant to Section 21(2A) of the Act, the Act, not entitled to deliver an Adjudication Response. In that circumstance, in my view, the delay between 15 August 2019, when the Application for Adjudication was lodged with Adjudicate Today, and 23 August 2019, when the further, correctly collated, hard copy of the Application for Adjudication was served on the respondent, had no practical effect.
[80]For these reasons, in my view, the Application for Adjudication is not invalid.
Injunctive relief earlier sought by plaintiff no longer relevant
The September 2019 Adjudication Determination rendered the plaintiff’s Originating Motion and Summons of 17 September 2019 and Amended Originating Motion of 1 October 2019 otiose insofar as that process sought to restrain the Adjudicator from providing his adjudication determination in relation to Promax’s August 2019 and September 2019 Adjudication Applications.
Subsequent to the September 2019 Adjudication Determination, at the hearings and argument on 14 and 18 October 2019, in substance, the relief the plaintiff sought was that summarised in paragraph [16] above and in sub-paragraphs (5) to (8) of the plaintiff’s Amended Originating Motion of 1 October 2019.
On 5 March 2020 a further hearing of this proceeding occurred as a result of the plaintiff issuing a Summons dated 3 March 2020 seeking an injunction restraining Promax from making a foreshadowed further adjudication application under the SoP Act in respect of the February 2020 Payment Claim, including in relation to the subject matter of the September 2019 Adjudication Determination which is the subject of the proceeding.
In summary, the background to the application on 5 March 2020 was:
(a) on 6 February 2020 Promax served a further payment claim (being the February 2020 Payment Claim);
(b) the February 2020 Payment Claim is for the amount of $2,094,721.53;
(c) the plaintiff asserted that all but $70.308.55 of the $2,094,721.53 claimed in the February 2020 Payment Claim was the subject of the September 2019 Adjudication Determination. The plaintiff also noted that Promax had earlier undertaken to the Court not to take any step to enforce pending resolution of the reserved judgment;
(d) the plaintiff served a payment schedule dated 20 February 2020 in response to the February 2020 Payment Claim, with a scheduled amount payable of ‘$Nil’;
(e) Promax had indicated that it will apply for adjudication of its February 2020 Payment Claim; and
(f) the plaintiff’s position was that in these circumstances, where the work and the claimed amount have already been the subject of a binding Adjudication Determination, Promax is not permitted to make, and is issue estopped from making, a further adjudication application.
On about 5 March 2020 the plaintiff and Promax agreed, amongst other terms, consent orders, in summary that subject to certain undertakings and preservation of any rights Promax may have under s 28 of the SoP Act, in substance that Promax would not refer its February 2020 Payment Claim, or any other specified adjudication, to an adjudicator under the SoP Act, so as to preserve the present status quo and to avoid imposing the burden of engaging in an adjudication process, for the time being, until after the delivery of judgment reserved in this proceeding in relation to the Amended Originating Motion and Summons dated 1 October 2019. Those consent orders also adjourned the plaintiff’s Summons of 3 March 2020, sine die.
The remaining issues to be determined on the plaintiff’s Amended Originating Motion and Summons dated 1 October 2019
The remaining issues to be determined on the plaintiff’s applications are:
(a) Was Promax’s August 2019 Adjudication Application compliantly served pursuant to s 18(5) of the SoP Act on 16 August 2019 and/or 23 August 2019;
(b) Was Promax’s September 2019 Adjudication Application a valid adjudication application pursuant to ss 18 and 28(2) of the SoP Act;
(d) Subject to the plaintiff’s challenges referred to in the next sub-paragraph, is the September 2019 Adjudication Determination void and unlawful;
(d) Is the September 2019 Adjudication Determination void to the extent of the Adjudicator’s valuations in paragraph [103] (Items [18.1] to [18.9]), and if so should Items [18.1] to [18.9] of the September 2019 Adjudication Determination be severed from that Adjudication Determination.
The Relevant Legislation
The SoP Act relevantly provides, in part, as follows:
18. Adjudication applications
(1)A claimant may apply for adjudication of a payment claim (an adjudication application) if-
(a)the respondent provides a payment schedule under Division 1 but -
(i)the scheduled amount indicated in the payment schedule is less than the claimed amount indicated in the payment claim; or
(ii)the respondent fails to pay the whole or any part of the scheduled amount to the claimant by the due date for payment of the amount; or
(b)the respondent fails to provide a payment schedule to the claimant under Division 1 and fails to pay the whole or any part of the claimed amount by the due date for payment of the amount.
(2)An adjudication application to which subsection (1)(b) applies cannot be made unless –
(a)the claimant has notified the respondent, within the period of 10 business days immediately following the due date for payment, of the claimant’s intention to apply for adjudication of the payment claim; and
(b)the respondent has been given an opportunity to provide a payment schedule to the claimant within 2 business days after receiving the claimant’s notice.
(3) An adjudication application—
(a) must be in writing; and
(b)subject to subsection (4), must be made to an authorised nominating authority chosen by the claimant; and
(c)in the case of an application under subsection (1)(a)(i), must be made within 10 business days after the claimant receives the payment schedule; and
(d)in the case of an application under subsection (1)(a)(ii), must be made within 10 business days after the due date for payment; and
(e)in the case of an application under subsection (1)(b), must be made within 5 business days after the end of the 2 day period referred to in subsection (2)(b); and
(f)must identify the payment claim and the payment schedule (if any) to which it relates; and
(g) must be accompanied by the application fee (if any) determined by the authorised nominating authority; and
(h)may contain any submissions relevant to the application that the claimant chooses to include.
(4)If the construction contract to which the payment claim relates lists 3 or more authorised nominating authorities, the application must be made to one of those authorities chosen by the claimant.
(5)A copy of the adjudication application must be served on the respondent.
…
(7)It is the duty of an authorised nominating authority to which an adjudication application is made to refer the application to an adjudicator as soon as practicable.
(8)An adjudicator to whom an application is referred under subsection (7) must be a person who is eligible to be an adjudicator as referred to in section 19.
Section 20 of the SoP Act provides:
20. Appointment of adjudicator
(1)An adjudicator accepts an adjudication application by causing notice of acceptance to be served on the claimant and the respondent.
(2)The acceptance takes effect when the last of the notices is served under subsection (1).
(3)On accepting an adjudication application, the adjudicator is taken to have been appointed to determine the application.
(4)An adjudicator must give a copy of a notice of acceptance under subsection (1) to the Authority within 10 business days after accepting an adjudication application under subsection (1).
Section 22 of the SoP Act provides:
22. Adjudication procedures
(1)An adjudicator is not to determine an adjudication application until after the end of the period within which the respondent may lodge an adjudication response.
(2) An adjudicator must serve a written notice—
(a)on any relevant principal and any other person who is included in the adjudication response under section 21(2)(c); and
(b)on any other person who the adjudicator reasonably believes, on the basis of any submission received from the claimant or the respondent, is a person who has a financial or contractual interest in the matters that are the subject of the adjudication application.
(3)An adjudicator is not to consider an adjudication response unless it was made before the end of the period within which the respondent may lodge the response.
(4)Subject to subsections (1) and (3), an adjudicator is to determine an adjudication application as expeditiously as possible and, in any case—
(a)within 10 business days after the date on which the acceptance by the adjudicator of the application takes effect in accordance with section 20(2); or
(b)within any further time, not exceeding 15 business days after that date, to which the claimant agrees.
(4A)A claimant must not unreasonably withhold their agreement under subsection (4)(b).
(5)For the purposes of any proceedings conducted to determine an adjudication application, an adjudicator—
(a)may request further written submissions from either party and must give the other party an opportunity to comment on those submissions; and
(b)may set deadlines for further submissions and comments by the parties; and
(c)may call a conference of the parties; and
(d)may carry out an inspection of any matter to which the claim relates.
(5A)Any conference called under subsection (5)(c) is to be conducted informally and the parties are not entitled to legal representation unless this is permitted by the adjudicator.
(6)The adjudicator’s power to determine an application is not affected by the failure of either or both of the parties to make a submission or comment within the time or to comply with the adjudicator's call for a conference of the parties.
Sections 23(2) and 23(4) of the SoP Act provide:
23.Adjudicator's determination
…
(2)In determining an adjudication application, the adjudicator must consider the following matters and those matters only-
(a)the provisions of this Act and any regulations made under this Act;
(b)subject to this Act, the provisions of the construction contract from which the application arose;
(c)the payment claim to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the claimant in support of the claim;
(d)the payment schedule (if any) to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the respondent in support of the schedule;
(e)the results of any inspection carried out by the adjudicator of any matter to which the claim relates.
…
(4)If, in determining an adjudication application, an adjudicator has, in accordance with section 11, determined-
(a)the value of any construction work carried out under a construction contract; or
(b)the value of any related goods and services supplied under a construction contract-
the adjudicator (or any other adjudicator) is, in any subsequent adjudication application that involves the determination of the value of that work or of those goods and services, to give the work or the goods and services the same value as that previously determined unless the claimant or respondent satisfies the adjudicator concerned that the value of the work or the goods and services has changed since the previous determination.
Section 28 of the SoP Act provides:
28.Claimant may make new application if previous application refused or not determined
(1)This section applies if—
(a)a claimant fails to receive an adjudicator's notice of acceptance of an adjudication application within 4 business days after the application is made; or
(b)an adjudicator who accepts an adjudication application fails to determine the application within the time allowed by section 22(4).
(2)In either of those circumstances, the claimant—
(a)may withdraw the application, by notice in writing served on the adjudicator or the authorised nominating authority to whom the application was made; and
(b)may make a new adjudication application under section 18.
(3)Despite sections 18(3)(c), 18(3)(d) and 18(3)(e), a new adjudication application may be made at any time within 5 business days after the claimant becomes entitled to withdraw the previous adjudication application under subsection (2).
(4)This Division applies to a new application referred to in this section in the same way as it applies to an application under section 18.
The plaintiff’s submissions
The service requirements of s 18(5) of the SoP Act have not been met
In outline summary the plaintiff:
(a) Submits that pursuant to s 18(5) of the SoP Act the applicant must effect service on the respondent ‘as soon as practicable thereafter’ once the application is lodged with the authorised nominating authority pursuant to s 18(3) of the SoP Act.[36] The plaintiff relies upon the decision of Ryan J in Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd & Anor,[37] (Niclin);
[36]Plaintiff Submissions, 19 September 2019, [24] and [37].
[37][2019] QSC 91.
(b) Alternatively submits that if its submission that s 18(5) of the SoP Act requires service ‘as soon as practicable’ is not accepted, then service ‘within a reasonable time’, in this particular case, requires service on the same day as the adjudication application was filed with the authorised nominating authority or on the next business day;[38]
[38]Plaintiff Submissions, 1 October 2019, [26].
(c) Submits in relation to what it contends did not amount to service of the August 2019 Adjudication Application on 16 August 2019, that the plaintiff did not receive a fully intact and self-contained copy of the August 2019 Adjudication Application, but rather:
Instead, a folder, cover letter, and Adjudicate Today application form for the Highett Project together with supporting documents (including the payment claim) for the Glen Huntly Project.[39]
[39]Ibid [28]-[29].
(d) Submits that Promax has failed to ‘strictly observe’ the mandatory requirements of s 18(5) of the SoP Act in that it has failed to properly serve its August 2019 Adjudication Application on the plaintiff for six business days between 15 August 2019 and 23 August 2019 when Promax again provided the August 2019 Adjudication Application to the plaintiff;[40]
[40]Ibid [1].
(e) Argues that Promax’s failure to properly serve its August 2019 Adjudication Application for six business days between 15 August 2019 and 23 August 2019 amounts to a breach of a jurisdictional requirement for a valid adjudication under the SoP Act;
(f) Recognises that on 16 August 2019 Promax made an initial attempt to serve hard copy documents within a day of making its August 2019 Adjudication Application to Adjudicate Today, but submits that this attempt by Promax to serve a hard copy of its Adjudication Application was manifestly deficient;
(g) Submits that as a consequence of Promax’s failure to compliantly serve its August 2019 Adjudication Application on 16 August 2019 that adjudication application and Promax’s further new September 2019 Adjudication Application served on 11 September 2019 purportedly under s 28 of the SoP Act, were non-compliant with the Act and void;
(h) Submits that as a consequence of the above the September 2019 Adjudication Determination was void and unlawful;
(i) Submits that further, or alternatively, paragraph [103] Items [18.1] to [18.9] of the September 2019 Adjudication Determination have not been determined in compliance with ss 11 and 23 of the SoP Act and are void and unlawful.
Complaint service under s 18(5) of the SoP Act is a jurisdictional requirement
The plaintiff submits that the service of a copy of the August 2019 Adjudication Application by Promax pursuant to s 18(5) of the SoP Act is both a jurisdictional necessity which must be met for the establishment of the adjudicator’s own jurisdiction under the SoP Act.
The plaintiff submits that its interpretation of the service requirements of s 18(5) of the SoP Act is supported by the text, context and purpose of the SoP Act and is consistent with the approach adopted by the Supreme Court of Queensland in Niclin and on appeal in Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd & Anor.[41] The plaintiff also submits that this interpretation is consistent with judicial observations that the observance of certain procedural steps and requirements provided for in the SoP Act are to be interpreted as requiring ‘strict observance’ on the part of the party required to undertake such procedure or step.[42]
[41][2019] QCA 177.
[42]Saville v Hallmarc Construction Pty Ltd (2015) 47 VR 177 and Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 at 437 [209].
The plaintiff acknowledges that ordinarily where no time is stipulated for doing an act, the Court will imply an obligation to do the act within reasonable time.[43]
[43]Plaintiff Submissions, 1 October 2019, [26].
The plaintiff submits that taking into account the purpose and provisions of the SoP Act, service of an adjudication application is required to be effected contemporaneously with filing, or as soon as practical thereafter, and that any other construction would cause dysfunction to the proper operation of the legislation.
Alternatively the plaintiff submits that if its submission that s 18(5) of the SoP Act requires service ‘as soon as practicable’ is not accepted, then service ‘within a reasonable time’, in this particular case, requires service on the same day as the adjudication application was filed with the authorised nominating authority or on the next business day.[44]
If an adjudication application is required to be served ‘as soon as practicable’, did Promax satisfy that requirement
[44]Ibid [26].
The plaintiff submits that Promax did not serve its August 2019 Adjudication Application as soon as practicable. Further the plaintiff observes that Promax could have served its August 2019 Adjudication Application on 15 August 2019, namely on the same day upon which MinterEllison, acting for Promax, electronically uploaded the August 2019 Adjudication Application to Adjudicate Today’s online lockbox facility,[45] or Promax could have served its August 2019 Adjudication Application the next day, namely 16 August 2019.
[45]Supplemental Blyth Affidavit, [2], Exhibit ‘AIB-27’ at [3.1.1].
The plaintiff submits that the contested service of a jumbled set of adjudication application material including not only material relating to the Highett Project, but also the Bulleen Project and the Glen Huntly Project on 16 August 2019[46] and the asserted service of the August 2019 Adjudication Application again on 23 August 2019,[47] six business days after the application had been filed with Adjudicate Today on 15 August 2019, do not comply with the service requirement of s 18(5) of the SoP Act.
[46]See First Blyth Affidavit, [13].
[47]Ibid [17]-[19], Exhibit ‘AIB-9’.
The plaintiff submits that if the Court holds that Promax failed to serve its August 2019 Adjudication Application as soon as practicable, in the circumstances of this case, that failure extinguishes Promax’s right to adjudication. In this regard, the plaintiff submits that compliance by the applicant for adjudication within s 18(5) of the SoP Act amounts to a jurisdictional requirement with which Promax has failed to comply.[48]
[48]Plaintiff Submissions, 19 September 2019, [46].
The September 2019 Adjudication Application also invalid and ineffective
The plaintiff also submits that the non-compliant service and resultant invalidity of the August 2019 Adjudication Application renders Promax’s new September 2019 Adjudication Application, purportedly made pursuant to s 28 of the SoP Act, invalid and ineffective.
The plaintiff argues that because the initial August 2019 Adjudication Application was not served in accordance with the SoP Act, that adjudication application is ‘null and void’, and therefore the current September 2019 Adjudication Application brought under s 28(2) of the SoP Act is also null and void because the operation of s 28 of the SoP Act is predicated on the earlier adjudication application which ‘fails’ (here the initial August 2019 Adjudication Application), being a valid adjudication application.
The plaintiff submits that s 28(1) of the SoP Act requires a valid antecedent adjudication application which complies with the mandatory obligations borne by a claim under s 18 of the SoP Act. The plaintiff submits that only then do the rights under s 28(2) of the SoP Act arise.
The plaintiff submits that under s 28(3) of the SoP Act a claimant’s right to make successive adjudication applications under s 28 of the Act only arises where there has been a valid adjudication application which complies with the mandatory obligations under s 18 of the Act, and there is no such preservation of rights by the claimant to make a new adjudication application pursuant to s 28 of the Act if there is a failure by the claimant to comply with any of ss 18(1), (2), (4) or (5) of the SoP Act.
The plaintiff submits that Promax’s reliance upon Olympia Group (NSW) Pty Ltd v Hansen Yuncken Pty Ltd[49] (Olympia Group) is of no assistance because the court in Olympia Group at [21] recognised that an applicant’s entitlement to make a new adjudication application would not be permitted by a court unless the court was satisfied that an adjudicator had jurisdiction to determine the claim. The plaintiff submits that the decision in Olympia Group is predicated upon the relevant withdrawal of ‘the application’ made under the SoP Act.[50]
[49][2011] NSWSC 165.
[50]Plaintiff Submissions, 1 October 2019 [40].
The plaintiff also submits that Promax’s reliance upon Multiplex Constructions Pty Ltd v Luikens and Anor[51] (Multiplex) and John Holland Pty Ltd v Made Contracting Pty Ltd[52] (John Holland) do not advance the matter or assist because it is to be accepted that the expression ‘fails to determine’ means ‘does not’ in the context of s 28 of the SoP Act, whereas the issue here is whether the August 2019 Adjudication Application was in fact an adjudication application at all.[53]
[51][2003] NSWSC 1140.
[52][2008] NSWSC 374.
[53]Plaintiff Submissions, 1 October 2019 [41].
The plaintiff submits that in Multiplex, the issue concerned an error by the adjudicator in making his determination. The adjudicator failed to take into account a matter he was required to take into account. The adjudication application itself was properly made, but the adjudication determination was not. It was in that context that Palmer J made the comments he did at [102] and [103], which the plaintiff submits do not assist Promax. Similarly, the plaintiff submits, in John Holland, the circumstances were that the applicant withdrew its adjudication application after the adjudicator indicated he was not going to consider some submissions apparently received out of time. The plaintiff submits that because the validity of the adjudication application itself was not in issue, that case also does not assist Promax.
The plaintiff submits that the decision of McDougall J in Cardinal Services v Hanave[54] is of assistance in this matter. In that case his Honour found that a void adjudication determination is not a determination at all. It is in law a nullity. The plaintiff submits that similar reasoning applies here.
[54][2010] NSWSC 1367.
On the plaintiff’s submission, the August 2019 Adjudication Application was not an adjudication application under the SoP Act, but was a legal nullity because it was not ever served compliantly under s 18(5) of the SoP Act. The plaintiff submits that therefore Promax cannot withdraw the August 2019 Adjudication Application and submit a new adjudication application under s 28 of the SoP Act, (and thus sidestepping ss 18(3)(c), 18(3)(d) and 18(3)(e) of the Act), because there is no valid adjudication application to withdraw.
The plaintiff also submits that:
(a) In relation to the September 2019 Adjudication Determination, irrespective of any ‘findings’ by the Adjudicator as to his or her jurisdiction under the SoP Act, such findings are of no utility and it is a matter for the Court to decide whether or not there was in fact jurisdictional error, as claimed by the plaintiff.[55]
[55]Plaintiff Submissions, 1 October 2019, [2].
(b) The mandatory obligation of the service of documents by the claimant under the SoP Act in relation to the initiation of the adjudication process is a matter which goes to the essential foundation of the Adjudicator’s jurisdiction.
(c) There is no ‘materiality threshold’ bearing upon the proper construction of s 18(5) of the SoP Act. The plaintiff submits that the proper construction of s 18(5) of the SoP Act, and the Act more generally, should be informed by the text, context and purpose of the SoP Act and its focus on strict time requirements and the effect of any non-compliance with the SoP Act which in respect of non-compliance with the mandatory service requirements of s 18(5) of the Act gives rise to non-establishment of jurisdictional fact.[56]
(d) The plaintiff argues, that any question of ‘materiality’ turns upon the proper construction of the relevant statute and the obligations imposed by the statute in question.[57] The plaintiff submits that s 18(5) of the SoP Act is a paradigm example of a mandatory obligation borne by the claimant under the SoP Act and is therefore required to be strictly observed in its terms.[58]
(e) The scheme of the SoP Act results in this case representing the exception to the ordinary rule requiring materiality of the type referred to in Hossain v Minister for Immigration and Border Protection.[59]
[56]Ibid [21]-[25].
[57]Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 264 CLR 421 at [44], [45]-[50] and 83].
[58]Saville v Halmarc Construction Pty Ltd [2015] VSCA 318; SSC v Plenty Road Construction Engineering (Aust) Pty Ltd & Anor [2016] VSCA 119 at [51].
[59](2018) 264 CLR 123, [29]-[31].
The plaintiff submits, in response to Promax’s submission that s 18(5) of the SoP Act requires service within ‘a reasonable time’ and its submission that the question of what is a reasonable time is always a question of fact, that Promax’s reliance upon QCCommunicationsNSW Pty Ltd v CivComm Pty Ltd[60] (QC Communications) is of no application as the facts are distinguishable, particularly as Falgat Constructions Pty Ltd v Equity Australia Corporation Ltd[61] (Falgat), which is relied upon in QC Communications, involved a different factual setting to the present instance. In Falgate the respondent was served with a fully intact and self-contained payment schedule.
[60][2016] NSWSC 1095, [27]–[29].
[61][2006] NSWCA 259.
Further, the plaintiff submits that the cases relied upon by Promax to support the proposition that service of the adjudication application upon the respondent is not a precondition of a valid adjudication determination, are obiter comments and yield to the later ratio relied upon by the plaintiff in Niclin and the ‘strict observance’ requirements of the SoP Act in Victoria.[62]
[62]Plaintiff Submissions, 1 October 2019, [32].
Further, the plaintiff relies upon Hammerschlag J’s decision in Parkview Constructions Pty Ltd v Total Lifestyle Windows Pty Ltd[63] (Parkview Constructions) in which his Honour refers to the service requirement in s 17(5) of the Building And Construction Industry Security Of Payment Act 1999 (NSW), (equivalent in substance to s 18(5) of the Victorian SoP Act). In Parkview Constructions his Honour stated:
59The Act contemplates that it is the same written words which are to be copied to the respondent and, for that matter, to be referred by the authorised nominating authority to an adjudicator. Compliance with this requirement is an essential preliminary for the decision making process for which the Act provides.
60The Act confers jurisdiction on an adjudicator to determine only the application which was made and then referred to her or him, not some other application.
[63][2017] NSWSC 194.
Promax’s submissions
Service requirements of s 18(5) of the SoP Act have been met
Promax submits that upon its proper construction, compliance with s 18(5) of the SoP Act requires a copy of the August 2019 Adjudication Application to be served on the plaintiff within a ‘reasonable time’. Promax submits that what is a reasonable time there is always a question of fact and necessarily is and should be a matter for the adjudicator to decide.[64]
[64]Promax Submissions, 19 September 2019, [16].
Promax submits that effective service of its August 2019 Adjudication Application was effected on 16 August 2019 pursuant to s 18(5) of the SoP Act by the notice, document or material in question being established as having ‘come to the attention of the authorised person’.
Further, Promax notes that the plaintiff’s only argument advanced in relation to service of the August 2019 Adjudication Application on 16 August 2019 is that some pages of the material comprising its August 2019 Adjudication Application provided to the plaintiff were out of order and were different to the materials lodged with the authorised nominating authority on 15 August 2019.[65]
[65]T14.25-T16.
Promax argues that the reliance by the plaintiff on the decision of the Supreme Court of Queensland in Niclin[66] to establish that the provisions of the Building and Construction Industry Payments Act 2004 (Qld), which is equivalent to s 18(5) of the SoP Act, requires service on the respondent ‘as soon as practicable’, is not persuasive because the statutory setting and context of Niclin is distinguishable.
[66][2019] QSC 91.
Further, Promax asserts that in addition to effecting compliant service of its August 2019 Adjudication Application on 16 August 2019, Promax again served the August 2019 Adjudication Application on the plaintiff on 23 August 2019 and that service was within a reasonable time of it making the August 2019 Adjudication Application.
Further, Promax relies on Ian Street Developer Pty Ltd v Arrow International Pty Ltd[67] (Ian Street) in support of its submission that s 18(5) of the SoP Act does not give rise to a jurisdictional fact and that the legislature, including by s 23(2B) of the SoP Act (addressed in more detail below in these reasons), did not intend that any breach of s 18(5) of the SoP Act would render an adjudicator’s decision invalid. Promax also rely on Ian Street in support of the proposition that in relation to the SoP Act the ‘scheme is avowedly established for the benefit of claimants’.[68]
[67][2018] VSCA 294.
[68]Ibid [73].
Promax submits that the plaintiff did not provide a payment schedule and therefore had no right to serve an adjudication response and, consequently, any failure on its part to strictly comply with the requirements of s 18(5) of the SoP Act to serve a copy of its August 2019 Adjudication Application on the plaintiff could not have prejudiced the plaintiff or affected the outcome of the Adjudication Application. Promax submits that any failure in relation to the service requirements of s 18(5) of the SoP Act did not materially affect the plaintiff’s rights and did not amount to a jurisdictional error.
The September 2019 Adjudication Application pursuant to s 28(2) of the SoP Act
Promax highlights the provisions of s 28 of the SoP Act, in the circumstances specified in that section, to establish an entitlement to withdraw an adjudication application pursuant to s 28(2) of the SoP Act and to make a new application pursuant to s 18 of and s 28(2)(b) of the Act.
Promax submits that the words ‘fails to determine’ in s 28(b) of the SoP Act is to be interpreted in a manner which ascribes a broad operation to that sub-section and in that regard bears a meaning which includes where an adjudicator’s decision is void for some reason.[69]
[69]Promax Submissions, 19 September 2019, [25]–[30]; Olympia Group (NSW) Pty Ltd v Hansen Yuncken Pty Ltd [2011] NSWSC 165; Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140; John Holland Pty Ltd v Made Contracting Pty Ltd [2008] NSWSC 374.
Promax further submits that while the plaintiff makes highly technical arguments about how non-compliance with service under s 18(5) of the SoP Act gives rise to jurisdictional error, it has failed to provide evidence of the materiality required for jurisdictional error.[70]
[70]Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 264 CLR 421 at [45]–[50].
Considerations
Compliance with service requirements of s 18(5) of the SoP Act
The proper interpretation of s 18(5) of the SoP Act
The text of s 18(5) of the SoP Act
Section 18(5) of the SoP Act provides that a copy of the adjudication application must be served on the respondent.
Section 18(5) of the SoP Act does not expressly specify a time within which a copy of the relevant adjudication application must be served on the respondent to an application.
Ordinarily at common law, in the absence of any stipulation as to a statutory period for undertaking an act, that stipulation is interpreted as requiring performance within a ‘reasonable time’.[71] Further, the determination of what is in the circumstances ‘a reasonable time’ is a question of fact.[72]
[71]Koon Wing Lau v Calwell (1949) 80 CLR 533, 573–574; BTR PLC v Westinghouse Brake & Signal Co (Australia) Ltd (1992) 34 FCR 246, 272–273.
[72]See, for example, Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537, 567-568; Crawford Fitting Co v Sydney Valve & Fittings PtyLtd (1988) 14 NSWLR 438, 444; K & M Prodanovski Pty Ltd v Calliden Insurance Ltd [2012] NSWCA 117, [48].
The object and the purpose of the SoP Act
The SoP Act, considered as a whole, reflects a scheme which has been judicially described as one containing ‘brutally fast time-frames’[73] and which includes provisions which indicate, in many instances that strict observance of procedural steps, and the time limits for such steps, is required.[74]
[73]Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd & Anor [2019] QSC 91, 3 at [5]; and 18 at [20].
[74]Saville v Hallmarc Constructions Pty Ltd (2015) 47 VR 177.
In this regard, the object and purpose of the SoP Act include to ensure and secure entitlements to progress payments for persons who have carried out construction work and supplied related materials and services, and to achieve the payment of such entitlements, quickly and cheaply. These purposes inform the proper interpretation of the SoP Act.
The context of the SoP Act in which s 18(5) operates
I consider, for the following reasons, that the statutory context and operation of the interrelated provisions referred to below supports a construction of s 18(5) of the Act pursuant to which the applicant is to serve its adjudication application within a reasonable time of the applicant making its adjudication application under s 18(3)(b) of the SoP Act.
The text and operation of the following provisions of the SoP Act support the above construction of s 18(5) of the Act because:
(a) It can be inferred from the absence of an express stipulation of a time for service in s 18(5) of the SoP Act and the provisions of several other sections in the SoP Act which do circumscribe the period within which a notice or document is to be served under the Act, that it was not the intention of Parliament to fix or otherwise stipulate the date by which the claimant is to serve a copy of its adjudication application on the respondent.
The sections of the SoP Act which are, by contrast to s 18(5) of the Act, prescriptive in fixing tight times within which an act is to take place, include;
(i) the claimant’s notification of intention to apply for an adjudication application (s 18(2)(a) - 10 business day limit);
(ii) the time within which the respondent may provide a payment schedule to the claimant after receiving the claimant’s notice of intention to apply (s 18(2)(b) - two business days);
(iii) the 10 business day limit under s 18(3)(a), (b) and (d) within which the claimant must make its adjudication application after a respondent provides a schedule (where the payment schedule is for less than was claimed) or the respondent fails to pay the whole or part of the scheduled amount in s 18(3) (s 18(3)(a), (b) and (d) - 10 business day limit);
(iv) the five day limit under s 18(3)(e) in respect of an adjudication application initiated on the basis that the respondent has failed to provide a payment schedule and fails to pay the whole of the amount claimed in s 18(3)(e) (s 18(3)(e) - 5 business day limit);
(v) the 10 business day limit for an adjudicator to give a copy of his or her notice of acceptance to the authority, pursuant to s 20(4), and s 28(3) and 28D(2) (s 20(4) and 28(3) - 10 business day limit);
(b) Similarly, it can be inferred that because no date for service is fixed or otherwise stipulated in s 18(5) of the SoP Act, the timing of service of the adjudication application on the respondent was not considered by the Parliament to be critical to the timing of the operation of the SoP Act, including the provisions which are interrelated with s 18 of the Act;[75]
[75]SoP Act, including ss 21(1), 22(1) and 22(4).
(c) It can also be inferred from the matters referred to in sub-paragraphs (a)-(b) above that Parliament intended that the time within which service under s 18(5) of the SoP Act was achieved should be flexible;
(d) It is also unlikely that the legislature would have intended to impose a strict or inflexible time limit in relation to the service of a copy of the adjudication application under s 18(5) of the SoP Act, given that s 18 itself provides elsewhere for specific times within which the claimant is to do certain things, including to notify its intention to apply for adjudication (s 18(2)(a) of the SoP Act). Similarly, s 18(3) of the Act prescribes several specific time limits for the time within which the claimant must make adjudication application;
(e) In a number of provisions the SoP Act expressly seeks to limit time by specifying that matters be undertaken ‘as soon as reasonably practicable’ (ss 18(7), 23A(a), 24(3), 28D(5), 28H(2) and 28J of the SoP Act);
(f) It is likely that if the legislature intended service under s 18(5) of the SoP Act to be effected ‘as soon as practicable’, after an adjudication application was made, those words, which are used in many instances elsewhere in the Act, would have been employed in s 18(5) of the Act;
(g) There are many other sections of the SoP Act in addition to s 18(5) in relation to which no time limits are expressly provided within which an act is to take place.[76] The implication of a requirement of the SoP Act that they be done ‘as soon as practicable’ would be potentially problematic;
[76]SoP Act, ss 12A(2), 16(2)(b), 17(2)(b), 20(1)&(2), 21(2B) and 21(3), 22(2), 28(2)(a), 28O(b), 32(1)(b).
(h) In an adjudication proceeding in which the respondent is entitled to make a response to the applicant’s adjudication application that response is provided for by s 21 of the SoP Act. Significantly, it is to be noted that the time under s 21(1) of the Act for the respondent to lodge its response to the adjudication application is flexible;
(i) The timing of service under s 18(5) of the SoP Act is inconsequential as a result of s 21(2A) of the Act precluding the respondent from lodging an adjudication response when it has not served a payment schedule pursuant to ss 15(4) or 18(2)(b) of the Act. In circumstances where a respondent is not entitled to lodge an adjudication response (as is the case in the instant matter), the adjudicator will, in any event, only receive and consider the applicant’s adjudication application;
(j) Service of an adjudication application under s 18(5) of the SoP Act within a reasonable time accommodates both the desirability of the discipline of the requirement of a reasonable time for service when the respondent is entitled to lodge an adjudication response pursuant to s 21(1) of the SoP Act, and also when the respondent is not permitted to lodge an adjudication response because of the operation of s 21(2A) of the SoP Act.
It is to be observed that what might be a reasonable time in the scenario where the respondent cannot lodge an adjudication response would, amongst other factors be informed by:
(i) the adjudication application provided via the authorised nominating authority to the adjudicator providing all relevant materials to the adjudicator;
(ii) the adjudicator being allowed 10 business days to determine the adjudication application from the date he or she served the parties with a notice of acceptance under s 20 of the SoP Act;
(iii) the ability of the claimant to agree to extend the time of up to five additional business days to the adjudicator to determine the adjudication application (s 22(4)(b)); and
(iv) there being no likely denial of natural justice to the respondent caused by delayed service of the adjudication application where the respondent is not entitled to provide an adjudication response.[77]
[77]Pacific General Securities v Soliman and Sons Pty Ltd (2006) 196 FLR 388, [48]-[50].
The scheme of the SoP Act
In addition to those features of the scheme of the SoP Act referred to in the preceding paragraph, the scheme of the Act, as it operates in respect of the present circumstances, subsequent to the plaintiff failing to provide a payment schedule in response to Promax’s July 2019 Payment Claim is that:
(a) pursuant to s 18(2)(a) of the SoP Act, Promax notified the plaintiff that it intended to apply for adjudication of its July 2019 Payment Claim;
(b) the plaintiff did not provide a payment schedule pursuant to either ss 15(4) or 18(2)(b) of the SoP Act in relation to Promax’s 15 July 2019 Payment Claim;
(c) as a result of (b) above, pursuant to s 21(2A) of the SoP Act, the plaintiff was not entitled to lodge an adjudication response.
Further, it is important to note that in circumstances where the respondent is permitted to lodge an adjudication response, the regime associated with the timing of adjudication applications and the required steps subsequent to the claimant making an adjudication application, highlight that the time at which the claimant serves the respondent with a copy of its adjudication application pursuant to s 18(5) of the SoP Act will not create any prejudice to the respondent or practical difficulties in relation to the statutorily prescribed procedures under the Act. This is principally because (omitting service of the adjudication application pursuant to s 18(5) of the Act for the purpose of the following summary):
(a) an applicant for adjudication makes its adjudication application under s 18(3)(b) of the SoP Act to an authorised nominating authority;
(b) an adjudicator who accepts an adjudication application causes his or her notice of acceptance to be served upon the claimant and the respondent pursuant to s 20(1) of the SoP Act.
At the point of the Adjudicator accepting service he or she is taken to have been appointed to determine the relevant application (s 20(3) of the SoP Act);
(c) thereafter, pursuant to s 21(2) of the SoP Act a respondent who is entitled to do so, may lodge a response to the claimant’s adjudication application with the adjudicator;
(i) within five days after receiving a copy of the adjudication application; or
(ii) two business days after receiving notice of an adjudicator’s acceptance of the adjudication application, whichever is later;
(d) under s 22(1) of the SoP Act, an adjudicator is not permitted to determine an adjudication application until after the end of the period within which the respondent may lodge an adjudication response, that is within the times referred to above in relation to the operation of s 21(2) of the SoP Act, and further the adjudicator is not permitted to consider the adjudication response unless it is made within time (s 22(3) of the SoP Act);
(e) the adjudicator is obliged to determine the adjudication application as expeditiously as possible and, in any case, within 10 business days after the date on which acceptance by the adjudicator of the application takes effect in accordance with s 20(2) of the SoP Act, or within a further period not exceeding 15 business days after that date, providing the claimant agrees.
Accordingly, the scheme of the SoP Act in relation to service by the claimant on the respondent of the adjudication application is such that the timing of service of the adjudication application on the respondent under s 18(5) of the Act is of lesser significance and little materiality in the sense that the date on which service under s 18(5) of the Act occurs will not result in the respondent to the adjudication application being unaware of that application being made or prejudiced by delayed service of the adjudication application. This is because the respondent will have received pre-application notice from the applicant that it is intending to make an adjudication application (s 18(2)(a) of the SoP Act) and because after that application has been made the respondent will have received notice of the adjudicator’s acceptance of the appointment as adjudicator.
Therefore the timing of service of the copy of the claimant’s adjudication application on the respondent is most unlikely to have any material effect on any subsequent statutory required step or deadline under the SoP Act. Further, this is clearly so in the instant case because the plaintiff is not entitled to provide an adjudication response.
Further, to the above scenarios and critically, s 22(1) of the SoP Act ensures that the adjudicator cannot make a determination in the adjudication application until after the end of the period within which the respondent may lodge an adjudication response. Where the respondent may lodge a response the adjudicator is prohibited from making a decision in the adjudication before the end of the effluxion of five business days after the adjudication application has been served on the respondent.[78] It is to be noted that the five business days within which the respondent may lodge its adjudication response does not run until the respondent is served with the adjudication application.
Conclusion – s 18(5) of the SoP Act requires service of the adjudication application within a reasonable time of the application being made under s 18(3)(b)
2.The remaining civil works comprise of 6 pits and connecting pipes, costs broken down as follows:
Cost of Pits (6 pits @ $7,500 excluding GST) 45000.00
Cost of Pipes to connect pits (excluding GST) 9000.00
Total Estimated Cost to Complete (excluding GST) 54000.00
GST 5400.00
Total Estimated Cost to Complete (incl GST) 59400.00
3.1155 has not disputed this claim. As the cost is established via the contractual trade breakdown and there is sufficient cost to complete all works based on the above figures, the above costing should be accepted.
I conclude as follows in respect of this claimed item:
1.The claimant claims 44% of the trade summary amount for civil works out of a total civil works budget of $50,000.00 (excl GST). It bases the calculation on the assessment of the partial completion of civil works, claiming that, to date, all aggies have been installed in the bored piers and retaining walls and the civil component of the stormwater detention tank has been completed. The claimant says that the Trade breakdown item #9 ‘Basement Ritek’ will be used to finish the detention tank as per the contract documentation and plans, calculated on the basis of the capping beam having been spayed in full, supported by the photos attached to the Application for Adjudication. In my view, the method of calculation and the amount calculated looks reasonable.
2.There is no material from the respondent to dispute this calculation.
3.I determine the amount payable in respect of the progress claim in respect of this contract work item is $55,000.00 (incl GST).
Electrical Services
Ref: 18.8
Claimant: $38,500.00 (incl GST)
Respondent:
Adjudicator: $38,500.00 (incl GST)
The claimant says as follows:
1.The claimed amount of $38,500 (incl GST) is for the delivery, hire and installation of all temporary power poles including running of cables and set up of site office and lunch room power.
2.The cost to complete as per the trade breakdown is $294,800 (incl GST).
3.Promax’s internal costing as per the trade breakdown is as follows and includes the profit margin:
Light & Power – Domestic 108000.00
Temp Power 35000.00
Light & Power – Commercial 39000.00
Switchboards & Main Power 45000.00
Communications & Data 58000.00
Fire Detection 18000.00
Total (ex GST) 303000.00
4.The quotations being received on this project are falling between $230,000 excluding GST and $255,000 excluding GST for the remaining scope of electrical works on the job. The cost to complete as per the contractual breakdown is more than the cost to complete the full scope of works as per the quotations as shown in below breakdown:
Light & Power – Domestic 108000.00
Light & Power – Commercial 39000.00
Switchboards & Main Power 45000.00
Communications & Data 58000.00
Fire Detection 18000.00
Total (ex GST) 268000.00
5.1155 has not disputed this claim. As the cost is established via the contractual trade breakdown and there is sufficient cost to complete all works based on the above figures, the above costing should be accepted.
I conclude as follows in respect of this claimed item:
1.The claimant claims 12% of the trade summary amount for electrical services out of a total electrical services budget of $50,000.00 (excl GST). It bases the calculation on the assessment of the partial completion of electrical services, based on the cost to complete the remaining electrical services, comprising delivery, hire and installation of all temporary power poles including running of cables and set up of site office and lunch room power. In my view, the method of calculation and the amount calculated looks reasonable.
2.There is no material from the respondent to dispute this calculation.
3.I determine the amount payable in respect of the progress claim in respect of this contract work item is $55,000.00 (incl GST).
Retaining Wall & Siteworks
Ref: 18.9
Claimant: $72,600.00 (incl GST)
Respondent:
Adjudicator: $ (inc GST)
The claimant says as follows:
1.The claimed amount of the $72,600 (incl GST) is for the completion of the retaining wall at the rear of the property, where the soil levels were higher than the remainder of the site. The capping beam is higher and the piles 600mm diameter and longer in length in this section of site in order to create a retaining wall for the soil. These works are complete as per the contract documentation and plans. The completed woks can be seen in the attached photographs.
2.1155 has not disputed this claim. As the cost is established via the contractual trade breakdown and all relevant works are complete as per the scope of works, the above costing should be accepted.
I conclude as follows in respect of this claimed item:
1.The claimant claims 100% of the trade summary amount for Retaining Wall & Siteworks out of a total Retaining Wall & Siteworks budget of $66,000.00 (excl GST).
2.It bases this claim on the 3 photos attached to the Application for Adjudication. In my view, the photos confirm that the Retaining Wall & Siteworks item is 100% complete.
3.There is no material from the respondent to dispute the completion of this claimed item.
4.I determine the amount payable in respect of the progress claim in respect of this contract work item is $72,600.00 (incl GST).
It is clear from the September 2019 Adjudication Determination that the Adjudicator had regard to the Contract between the parties in arriving at his Adjudication Determination. The plaintiff does not argue otherwise. In addition to other references to the Contract at [50]-[57] the Adjudicator references at [53] and [54] Schedule 1 of the Contract and cl N3.2(d) in relation to the Contract progress payment claim.
It can be seen from the Adjudication Determination that in making his determination, the Adjudicator also addressed the fundamental requirements of SoP Act, in particular ss 11 and 23(1) and 23(2)(a)-(c). The Adjudicator had regard to the Contract, the payment claim, the submissions which he received including relevant documentation and also considered the provisions of the SoP Act.[141]
[141]Examples at Adjudication Determination [17]-[37], [48], [50]–[57] and [81]-[101].
The September 2019 Adjudication Application and attached information and materials, including Promax’s payment claim submissions, formed part of the relevant documentation received by the Adjudicator pursuant to s 23(2)(c) of the SoP Act.[142]
[142]Adjudication Determination [48], refer also [62(31)] Highett Project ‘Trade Summary’.
In relation to the Contract, the Adjudicator at [50]-[57] and [84] specifically referenced s 11(1)(b) of the SoP Act, and in paragraphs including [83] and [101] referred to his obligations in relation to valuing work the subject of the relevant progress claim under the SoP Act.
I am satisfied that in undertaking his valuation in relation to the September 2019 Adjudication Determination the Adjudicator turned his mind to, and took into account all required matters in undertaking his task pursuant to s 23 of the SoP Act.
Further, in relation to each Item in relation to which he undertook his valuation and determination[143] the Adjudicator makes reference to Promax’s claim presentation and method of calculation and explains how he arrives at his determination of the amount payable in respect of each of Promax’s progress claim components.
The adjudicator determined the amount of progress claim entitlements in accordance with ss 11 and 23 of the SoP Act
[143]Adjudication Items [18.1], [18.4], [18.7], [18.8] and [18.9].
In relation to each of the following Items of claim the Adjudicator had regard to site photographs of the nature, scope and extent of completion of that claimed item of work at [103] of the Adjudication Determination: [18.2] (Bored Piers), Item [18.3] (Capping Beam Works), Item [18.4] (Shotcrete) Item [18.5] (Excavation), Item [18.6] (Basement Footings), Item [18.7] (Basement Ritek) and Item [18.9] (Retaining Wall at rear of property). In relation to Item 8.8 Electrical Services ($38,500) the Adjudicator analysed contract estimates (allowances), and supporting quotations and the ‘trade breakdown’ in undertaking his valuation.[144]
[144]Adjudication Determination: Affidavit of Isobel Carmody, 1 October 2019, Exhibit ‘IJC-01’.
The Adjudicator also appropriately refers to the fact that there is no contradictory material or submission from the respondent in relation to each claim. In this regard I consider that the Adjudicator was entitled to daw an inference from the absence of any contradictory relevant documentation or material from the respondent, that no credible challenge was able to be made to the value of the claims made by Promax.[145] I also consider that the fact that the plaintiff has not provided a payment schedule under either ss 15(4) or 18(2)(b) of the SoP Act and is therefore, by force of s 21(2A) of the Act, not entitled to provide an adjudication response, is no impediment to the Adjudicator proceeding in this way as the determiner of fact.
[145]SSC Plenty Road v Construction Engineering (Aust) Pty Ltd, [2015] VSC 631, [101].
The above approach is also supported by authority. In SSC Plenty Road[146] Vickery J observed:
[146][2015] VSC 631.
(j)The adjudicator must proceed to make the critical findings by:
(i)fairly assessing and weighing the whole of the evidence which is relevant to each issue arising for determination at the adjudication;
(ii)drawing any necessary inferences from the evidence, or from the absence of any controverting material provided by the respondent, including an inference that if there is no controverting material, no credible challenge can be made to the value of the claim advanced by the claimant. Such an inference may be considered in the context of the evidence as a whole;
(iii)arriving at a rational conclusion founded upon the evidence;
(iv)in so doing, is not called upon to act as an expert; and
(v)is not entitled to impose an onus on either party to establish a sufficient basis for payment or a sufficient basis for withholding payment. [147] (emphasis added)
[147]Ibid [101].
In Iskra v MMIR Pty Limited[148] the Court of Appeal in New South Wales, per Gleeson JA, adopted what was said by Hodgson JA in Coordinated Construction Co Pty Limited v J M Hargreaves (NSW) PtyLimited,[149] namely:
52.… The adjudicator may very readily find in favour of a claimant on the merits of a claim if no relevant material is put by the respondent; but the absence of such material does not mean that the adjudicator can simply award the amount of the claim without addressing it its merits.
53. Indeed, my tentative view is that, if an adjudicator determined the progress payment at the amount claimed simply because he or she rejected the relevance of the respondent’s material, this could be such a failure to address the task set by the Act as to render the determination void. [150]
[148][2019] NSWCA 126, [41], [46], [47] and [49].
[149][2005] NSWCA 228.
[150]The Court of Appeal in Iskra observed that to the extent that there was any disagreement in between Hodgson JA and Basten JA in Coordinated Construction as to whether an adjudicator is entitled to go beyond the terms of the adjudication response in rejecting part or all of the progress claims, it was not necessary to decide that question in Iskra. See Coordinated Construction [2005] NSWCA 228 at [52] per Hodgson JA cf [64]–[68] per Basten JA.
In my view the Adjudicator’s above approach to his valuation task, as reflected by his September 2019 Adjudication Determination including in the ways highlighted above, does not support the plaintiff’s submission that he merely adopts Promax’s trade breakdown and the amount claimed by Promax. The Adjudicator explains how he arrives at his September 2019 Adjudication Determination and expresses his view that the amount calculated by Promax looks reasonable. Further the Adjudicator relies upon the site photographs with which he was provided to evaluate the nature, scope and extent of work completed and other documentation including quotations in relation to the works.
For the above reasons I am not persuaded, as the plaintiff submits, that the Adjudicator has either just accepted the Promax claims without undertaking an independent valuation or has in some way ‘worked backwards’ in arriving at his stated valuation.
In relation to the Items Bored Piers [18.2]; Capping Beam [18.3]; Excavation [18.5], Basement Footing [18.6], Civil [18.7] and Retaining Wall and Siteworks [18.9] the Adjudicator expresses his satisfaction in relation to the claims and supporting information presented and accepts the costs and state of completion established by the trade breakdown provided by Promax and the nature, scope and level of completion also established by the photographs provided by Promax to substantiate the relevant item of work claimed. The Adjudicator also notes that there is no material from the respondent (plaintiff) to dispute the completion of the works claim.
Further, in relation to Item [18.4] (Shotcrete) the Adjudicator states that the completed works were evidenced by photographs included in Promax’s claim and in relation to Item [18.8] (Electrical Services) the Adjudicator in part relied upon quotations in relation to the electrical services claimed.
The September 2019 Adjudication Determination at [103] specified, in relation to each Item claimed, the information in addition to the Promax trade breakdown relied on by the Adjudicator in his valuation, including which Items were supported by site photographs and quotations.[151]
[151]In relation to each of the following Items of claim the Adjudicator had regard to site photographs of the nature, scope and extent of completion of the claimed items of work relied upon at [103] of the Adjudication Determination [18.2] (Bored Piers), Item [18.3] (Capping Beam Works), Item [18.4] (Shotcrete) Item [18.5] (Excavation), Item [18.6] (Basement Footings), Item [18.7] (Basement Ritek) and Item [18.9] (Retaining Wall at rear of property). In relation to Item 8.8 Electrical Services ($38,500) the Adjudicator analysed contract estimates (allowances), supporting Quotations and the ‘trade breakdown’.
The ‘trade breakdown’ is not a contractual document
The parties sought to rely upon a body of affidavit evidence in relation to the finalisation of the Contract in Bali, Indonesia in early January 2019,[152] together with further evidence in relation to the utilisation of the Promax trade breakdown during the administration of the Highett Project.
[152]Affidavit of Hayrettin Girgin, 8 October 2019, Exhibit ‘HMG-1’; First Blyth Affidavit, Exhibit ‘AIB-6’; Affidavit of Hayrettin Girgin, 8 October 2019, [4]; First Blyth Affidavit, [7], Exhibit ‘AIB-6’; T64.21-27.
Ultimately I consider the above evidence, and associated exhibits, to be of no materiality because that material is not strictly relevant to a judicial review of the present nature including because the point these materials contest, namely that the Adjudicator was in error to treat the ‘trade breakdown’ as a contractual document, was not so decided by the Adjudicator, nor did Promax argue that the trade breakdown formed part of the Contract between the parties.
Furthermore, I both consider it would be inappropriate to attempt to decide this issue on untested affidavit evidence and also because, for the reasons outlined below, I consider it unnecessary to attempt to determine in this proceeding, such controversy as there may be between the parties as to the composition of the Contract documents. That course is unnecessary because the Adjudicator was entitled on other clear bases, including the operation of s 23(2)(b) and (c) of the SoP Act, and the terms of the Contract in Clause N3.4 and Schedule 1, Item 33(4) to have regard to and utilise (and if the Adjudicator considered justified, rely upon) Promax’s ‘trade breakdown’ in evaluating Promax’s progress payment entitlements. Pursuant to s 23(2)(c) of the SoP Act, the Adjudicator was obliged to have regard to the Highett Project ‘trade breakdown’ as part of the information provided by the claimant in the Adjudication.
Contract recognition of the relevance of a ‘trade breakdown’ to evaluating the contracts payment claims
The information, including documentation before the Adjudicator comprised the materials identified by the Adjudicator in paragraph [48] of his Adjudication Determination. Promax’s ‘trade breakdown’, site photographs of areas of the works expressly noted as relied upon by the Adjudicator in relation to many of the Items valued in the September 2019 Adjudication Determination and quotations were part of the claim information provided by Promax to the Adjudicator.
It is clear from the ‘trade breakdown’ that Promax developed that document to set out the amount or budget for the trade components described in the trade summary and to identify items which made the contract price and key expenditure information, both past and projected, to inform and support Promax’s monthly contractual progress claims.
It is also manifest by reference to the ‘trade breakdown’ that it identifies and allows Promax and those evaluating its payment claim to assess and determine the value of components of the contract price in relation to completed works, and also in relation to work completed in each relevant month, together with the cost to complete the contract works, by reference to each trade component and associated cost.[153]
[153]First Blyth Affidavit, Exhibit ‘AIB-10’, Tab 4 Trade Summary.
Accordingly, and relevantly for the purposes of s 11(1)(b)(i) of the SoP Act, the trade summary provides evidence of the estimated values of each of the Items comprising the overall contract price for the work. It identifies the trade components or Items which make up the overall lump sum contract price for the work. So much is clear on the face of the trade breakdown.
The trade breakdown which Promax placed before the Adjudicator self-evidently constitutes a Promax working document and record of the allocated value of the Items making up the overall contract price and Promax’s trade breakdown document also constitutes a contemporaneous working document and record, produced by Promax, of the percentage of work completed, by reference to each Item in Promax’s original calculation and allocation of the contract price for the work.
Furthermore, the Contract itself provides for a progress claim procedure in Clause N5 (page 63), and Clause N3 (Payment for the Works) paragraphs N3.2 to N3.4, in relation to progress claim – optional procedures for the Contractor.
The Contract requires that the contractor’s payment claim be supported by the information shown in Item 33 of Schedule 1 to the Contract.[154] Schedule 1 Item 33 of the Contract mandates that the information to be included in a progress claim include ‘4. Trade Breakdown’.[155]
[154]Contract N3, N3.1-4, pages 61-62.
[155]Contract Schedule 1 Item 33, cl N3, page 10.
Accordingly, it is clear on the uncontested terms of the Contract that the plaintiff and Promax agreed that the Promax ‘trade breakdown’ would be one of the prime materials required to support Promax’s payment claims, and obviously for that reason the plaintiff and Promax agreed that document would be utilised to value Promax’s payment entitlements under the Contract.
In Asian Pacific Building Corporation Pty Ltd v Aircon Duct Fabrication Pty Ltd & Ors,[156] Vickery J accepted as legitimate in the adjudicator’s determination of the amount of a claimant’s payment claim entitlement, reliance by the adjudicator upon a QS Trade Summary for the Project Financier which showed assessments of each trade, including a line item budget for previous trade expenditure, variance of expenditure to date, expenditure for the relevant month and cost to complete. The claimant in the adjudication application did not provide any information to challenge the validity of trade summary. The adjudicator accepted the trade summary as the only assessment on which he could rely as to the value of works completed up to date. Vickery J concluded that there was ‘no error in this process’.[157]
[156][2010] VSC 300 at [58]-[62].
[157]Ibid [61].
In my view the Adjudicator was obliged by s 23(2)(c) of the SoP Act to take into account, and was entitled to rely upon, the materials placed before him in the Adjudication, which included the Promax ‘trade breakdown’, the site photographs, quotations and other substantiating materials provided by Promax in support of its submission in relation to the value of its payment entitlement in the Adjudication.
In my view it was open to the Adjudicator to accept, or reject, as the resolver of facts and disputes and as the determiner of the value of Promax’s claims, the value of the various Items referred to in paragraph [103] of the September 2019 Adjudication Determination and in doing so to rely upon material provided by Promax, including its ‘trade breakdown’. Further, in my view it was also open to the Adjudicator to more readily accept the claimant’s claims when there was no contradictory information from the respondent in relation to those claims.
I also note that in that regard it is not the adjudicator’s task to find flaws which are not obvious or manifest in relation to the claimant’s progress claim entitlements.[158]
[158]Brookhollow Pty Ltd v R & R Consultants Pty Ltd [2006] NSWSC 1.
Accordingly, in referring to and relying upon the Promax trade breakdown in his evaluation and determination, the Adjudicator was in my view quite properly and legitimately able to rely upon a document which s 23(2)(b) and (c) of the SoP Act required the Adjudicator to consider and which the parties’ Contract also required to be provided by Promax to support its payment claim.
The Adjudicator’s consideration of and reliance upon the Promax trade breakdown, which identifies the contract price for the work and a logically relevant breakdown of that price into a ‘Trade Summary’, also I consider reflects both an approach sanctioned by s 11(1)(b)(i) of the SoP Act which directs the Adjudicator to have regard to the contract price for the work, and the requirements of the Contract in Clause N3.4 and Schedule 1, Item 33.
The plaintiff argues that the decisions of Vickery J in both SSC Plenty Road[159] and Krongold[160] point up errors in the Adjudicator’s approach to the September 2019 Adjudication Determination.
[159][2015] VSC 631.
[160][2016] VSC 94.
In SSC Plenty Road[161] Vickery J disallowed the adjudicator’s valuation because the adjudicator adopted the amount claimed in the payment claim rather than undertaking an independent analysis and also because the adjudicator imposed an onus on the respondent to establish a sufficient basis upon which to withhold payment.[162]
[161][2015] VSC 631.
[162]Ibid [134].
In Krongold[163] Vickery J found in a matter where the respondent had failed to provide a valid payment schedule in accordance with the SoP Act, which resulted in the payment claim being undefended, that simple acceptance by the adjudicator of the amount claimed by the claimant without the adjudicator demonstrating any sufficient process of assessment of the value, was not in accordance with the SoP Act and resulted in the adjudicator falling into jurisdictional error.
[163][2016] VSC 94.
I do not consider that the subject September 2019 Adjudication Determination exhibits the deficiencies and errors which his Honour identified in either of the above decisions. For the reasons I have outlined above, I am not satisfied that there is any basis upon which to conclude that the Adjudicator in this instance has failed to consider and properly value in accordance with the SoP Act, and notwithstanding the absence of a payment schedule independently satisfied himself that Promax was entitled to the amounts of progress payment which it claimed.
Similarly I am not satisfied that there are any proper basis upon which to find that the Adjudicator has simply accepted Promax’s claim without undertaking a process of assessment and valuation in accordance with the SoP Act.
For the reasons I have explained above I am also satisfied that the Adjudicator by his September 2019 Adjudication Determination sufficiently explained the process and bases upon which he has determined the Promax entitlements. In this regard the Adjudicator is not required to meet an exacting standard in relation to reasons for his Adjudication Determinations; bare reasons will ordinarily suffice.[164]
[164]SSC Plenty Road v Construction Engineering (Aust) Pty Ltd [2015] VSC 631, [107] and Nuance Group v Shape Australia [2018] VSC 362, [52].
For the above reasons I reject the plaintiff’s case that the Adjudicator’s findings at [103] in relation to Items [18.1] to [18.9] of the September 2019 Adjudication Determination are not in accord with ss 11 and 23(4) of the SoP Act and fail to demonstrate any process of reasoning and assessment by the Adjudicator of the value of the claim.
In this case for the reasons outlined above, I am not satisfied that the Adjudicator has failed to undertake a cogent, logical and evidence based valuation of the work carried out by Promax in accordance with ss 11 and 23 of the SoP Act, so as to arrive at the amount of progress payment which Promax is entitled to be paid in accordance with that Act. Positively expressed, I find that the Adjudicator so proceeded in compliance with s 11(1)(b)(i) and s 23 of the SoP Act and in that way determined that Promax was entitled to be paid $2,017,382.15 (incl GST) in relation to its July 2019 Payment Claim.
Conclusions
In summary, for the above reasons I conclude that:
(a) the August 2019 Adjudication Application was compliantly served on 16 August 2019, pursuant to s 18(5) of the SoP Act; and
(b) the new September 2019 Adjudication Application was validly issued, pursuant to ss 18 and 28 (2)(b) of the SoP Act, and compliantly served on 11 September 2019;
(c) the September 2019 Adjudication Determination is valid and effective, including in respect of the Adjudicator’s valuations at paragraph [103] in relation to each of the Items [18.1] to [18.9] thereof.
Decision
For the above reasons the plaintiff’s application by Amended Originating Motion and Summons dated 1 October 2019, seeking to have the September 2019 Adjudication Determination quashed, alternatively set aside, should be dismissed.
Orders
Accordingly I shall order that the plaintiff’s Amended Originating Motion dated 1 October 2019, Amended Summons dated 1 October 2019 and Summons dated 3 March 2020 be dismissed.
I will afford the parties the opportunity to make short written submission (limited to two pages) in relation to the final form of proposed orders and any further necessary consequential orders, including as to the undertakings provided to the Court referred to in the Orders made 20 September 2019 and 5 March 2020, and as to orders for costs.
A party who wishes to provide short submissions shall do so by 4.00pm on Thursday 9 July 2020. In the event that no submissions are filed by the parties the Court will thereafter prepare and forward the authenticated order in this matter.
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