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Acciona Infrastructure Australia Pty Ltd v Chess Engineering Pty Ltd

Acciona Infrastructure Australia Pty Ltd v Chess Engineering Pty Ltd

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Case Copied 16 October 2020 80 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Acciona Infrastructure Australia Pty Ltd v Chess Engineering Pty Ltd [2020] NSWSC 1423
Hearing dates: 27 July 2020
Decision date: 16 October 2020
Jurisdiction: Equity - Technology and Construction List
Before: Henry J
Decision:
Error established in respect of one variation. See also [222].

Catchwords:
BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payments Act 1999 (NSW) – adjudication – judicial review – whether adjudicator failed to perform statutory function and denied plaintiff procedural fairness by failing to consider payment schedule and adjudication response submissions – whether adjudicator failed to form a view as to what was properly payable on the merits of the defendant’s claim – whether adjudicator misconstrued s 20(2B) of the Act – error in failing to form a view as to what was properly payable found in respect of one variation

Legislation Cited:
Building and Construction Industry Security of Payment Act 1999 (NSW), ss 20(2B), 22(2)
Civil Procedure Act 2005 (NSW), ss 56, 58

Cases Cited:
Anderson Street Banksmeadow Pty Ltd v Helcon Contracting Australia Pty Ltd [2013] NSWSC 657
Azriel v NSW Land & Housing Corporation [2006] NSWCA 372
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
CC Builders (Aust) Pty Limited v Milestone Civil Pty Limited [2019] NSWSC 1251
Cockram Construction Ltd v Fulton Hogan Construction Pty Ltd (2018) 97 NSWLR 773; [2018] NSWCA 107
Diona Pty Ltd v Downer EDI Works Pty Ltd [2020] NSWSC 480
Downer Construction (Aust) Pty Ltd v Energy Australia (2007) 69 NSWLR 72; [2007] NSWCA 49
Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd (2018) 98 NSWLR 712; [2018] NSWCA 276
Hanson Construction Materials Pty Ltd v Brolton Group Pty Ltd [2019] NSWSC 1641
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339
Iskra v MMIR Pty Ltd [2019] NSWCA 126
JKC Australia LNG Pty Ltd v Inpex Operations Australia Pty Ltd (2018) 334 FLR 314; [2018] NTCA 6
John Holland Pty Ltd v Roads and Traffic Authority of New South Wales [2007] NSWCA 19
Laing O’Rourke Australia Construction Pty Ltd v Monford Group Pty Ltd [2018] NSWSC 491
Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd [2012] 1 Qd R 525; [2011] QCA 22
NSW Netball Association Limited v Probuild Construction (Aust) Pty Limited [2015] NSWSC 1339
Perform (NSW) Pty Ltd v Mev-Aust Pty Ltd [2009] NSWCA 157
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4
Rhomberg Rail Australia Pty Limited v Concrete Evidence Pty Limited [2019] NSWSC 755
Richard Crookes Construction Pty Ltd v CES Projects (Aust) Pty Ltd (No 2) [2016] NSWSC 1229
Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2007] NSWSC 941
TWT…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 1423
Decision Date: 16 October 2020

CaseChat Overview and Summary

Acciona Infrastructure Australia Pty Ltd sued Chess Engineering Pty Ltd in the Supreme Court of New South Wales over a dispute arising under the Building and Construction Industry Security of Payments Act 1999. Acciona, the principal contractor, sought a declaration that an adjudicator's decision in a payment dispute was invalid due to procedural unfairness and errors in the application of the Act. Chess, the sub-contractor, defended the adjudicator's decision and argued that Acciona had failed to establish any ground for judicial review.

The court was tasked with determining whether the adjudicator failed to perform their statutory function and denied Acciona procedural fairness by not considering the payment schedule and Acciona's response to the adjudication. Additionally, the court had to decide whether the adjudicator failed to form a view as to what was properly payable on the merits of Chess's claim, and whether the adjudicator misconstrued section 20(2B) of the Act. The court found that the adjudicator did not consider the payment schedule or Acciona's response, which constituted a failure to perform the statutory function and a denial of procedural fairness. However, the court concluded that these errors did not vitiate the adjudication decision as the errors did not affect the outcome. The court also found that the adjudicator did form a view as to what was properly payable on the merits of Chess's claim, and there was no misconstruction of section 20(2B) of the Act, except in respect of one variation where the adjudicator failed to form a view as to what was properly payable.

The court held that the adjudicator's errors in not considering the payment schedule and Acciona's response to the adjudication did not vitiate the adjudication decision. The court found that the adjudicator did form a view as to what was properly payable on the merits of Chess's claim, except in respect of one variation. The court found no misconstruction of section 20(2B) of the Act, except in respect of one variation. The court dismissed Acciona's claim for a declaration that the adjudicator's decision was invalid.

Orders