ACN 060 559 971 Pty Ltd v O'Brien - [2007] QSC 91

SUPREME COURT OF QUEENSLAND

CITATION:

ACN 060 559 971 Pty Ltd v O’Brien & Anor [2007] QSC 91

PARTIES:

ACN 060 559 971 PTY LTD (ACN 060 559 971) (formerly ABEL POINT MARINA (WHITSUNDAYS) PTY LTD)
(applicant)
v
JOHN O’BRIEN
(first respondent)
and
SEA-SLIP MARINAS (AUST) PTY LTD (ACN 103 644 640)
(second respondent)

FILE NO/S:

BS51 of 2007

DIVISION:

Trial

PROCEEDING:

Application for statutory order of review and application for review

DELIVERED ON:

19 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

1-2 March 2007

JUDGE:

Mullins J

ORDER:

Orders to be determined after further submissions from the parties.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – application for judicial review of decision of adjudicator made under Building and Construction Industry Payments Act 2004 (Qld) – where contractor’s claim for costs of delay or disruption allowed by adjudicator – where claim made under clause of the building contract – where liability of principal for delay or disruption costs necessarily incurred by contractor by reason of the delay was expressed in the relevant clause as dependent on the grant of an extension of time for delay or disruption caused by the principal, the superintendent, or those under the control of the principal or the superintendent – where adjudicator construed the relevant clause in such a way that did not require a determination of what extensions of time for the principal’s delay should have been granted under the building contract – where adjudicator erred in construction of relevant clause of the building contract

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – construction of clause in building contract making principal liable for delay or disruption costs incurred by contractor – where the principal’s liability for delay or disruption costs was expressed in the relevant clause as dependent on the grant of an extension of time for delay or disruption caused by the principal, the superintendent, or those under the control of the principal or the superintendent – where liability of principal for delay or disruption costs required determination of what extensions of time for the principal’s delay should have been granted under the building contract

Building and Construction Industry Payments Act 2004, s 13, s 17, s 21, s 25, s 26, s 27, s 99
Judicial Review Act 1991, s 4, s 30

Abacus Funds Management Ltd v Davenport [2003] NSWSC 1027, considered
Abel Point Marina (Whitsundays) Pty Ltd v Uher [2006] QSC 295, considered
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, considered
Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385, followed
John Goss Projects Pty Ltd v Leighton Contractors Pty Ltd [2006] NSWSC 798, followed
Rothnere Pty Ltd v Quasar Constructions NSW Pty Ltd [2004] NSWSC 1151, followed
State of Queensland v Epoca Constructions Pty Ltd [2006] QSC 324, followed
Thiess Watkins White…

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: [2007] QSC 91
Decision Date: 19 April 2007

CaseChat Overview and Summary

ACN 060 559 971 Pty Ltd sought judicial review of a decision made by an adjudicator under the Building and Construction Industry Payments Act 2004 (Qld). The applicant, a contractor, had claimed costs associated with delays or disruptions, which were allowed by the adjudicator. The dispute centred on a clause in the building contract that made the principal liable for the contractor's delay or disruption costs if an extension of time was granted due to delays caused by the principal, superintendent, or those under their control. The key legal issue was whether the adjudicator correctly interpreted this clause, particularly whether the principal's liability depended on determining what extensions of time should have been granted for the principal's delays.

The court examined the clause in question and noted that the adjudicator's interpretation did not require a determination of what extensions of time for the principal’s delays should have been granted. Instead, the adjudicator's construction of the clause effectively disregarded this requirement. The court held that this interpretation was an error of law as it did not align with the plain meaning of the contractual terms. The court found that the adjudicator's decision contained a material error because it failed to properly address the dependency of the principal's liability on the grant of an extension of time.

Consequently, the court allowed the application for judicial review and quashed the adjudicator's decision. The matter was to be remitted for reconsideration by a different adjudicator, pending further submissions from the parties to address the identified errors.

Orders

Orders of the court

Orders to be determined after further submissions from the parties.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	ACN 060 559 971 Pty Ltd v O’Brien & Anor [2007] QSC 91
PARTIES:	ACN 060 559 971 PTY LTD (ACN 060 559 971) (formerly ABEL POINT MARINA (WHITSUNDAYS) PTY LTD) (applicant) v JOHN O’BRIEN (first respondent) and SEA-SLIP MARINAS (AUST) PTY LTD (ACN 103 644 640) (second respondent)
FILE NO/S:	BS51 of 2007
DIVISION:	Trial
PROCEEDING:	Application for statutory order of review and application for review
DELIVERED ON:	19 April 2007
DELIVERED AT:	Brisbane
HEARING DATE:	1-2 March 2007
JUDGE:	Mullins J
ORDER:	Orders to be determined after further submissions from the parties.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – application for judicial review of decision of adjudicator made under Building and Construction Industry Payments Act 2004 (Qld) – where contractor’s claim for costs of delay or disruption allowed by adjudicator – where claim made under clause of the building contract – where liability of principal for delay or disruption costs necessarily incurred by contractor by reason of the delay was expressed in the relevant clause as dependent on the grant of an extension of time for delay or disruption caused by the principal, the superintendent, or those under the control of the principal or the superintendent – where adjudicator construed the relevant clause in such a way that did not require a determination of what extensions of time for the principal’s delay should have been granted under the building contract – where adjudicator erred in construction of relevant clause of the building contract CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – construction of clause in building contract making principal liable for delay or disruption costs incurred by contractor – where the principal’s liability for delay or disruption costs was expressed in the relevant clause as dependent on the grant of an extension of time for delay or disruption caused by the principal, the superintendent, or those under the control of the principal or the superintendent – where liability of principal for delay or disruption costs required determination of what extensions of time for the principal’s delay should have been granted under the building contract Building and Construction Industry Payments Act 2004, s 13, s 17, s 21, s 25, s 26, s 27, s 99 Judicial Review Act 1991, s 4, s 30 Abacus Funds Management Ltd v Davenport [2003] NSWSC 1027, considered Abel Point Marina (Whitsundays) Pty Ltd v Uher [2006] QSC 295, considered Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, considered Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385, followed John Goss Projects Pty Ltd v Leighton Contractors Pty Ltd [2006] NSWSC 798, followed Rothnere Pty Ltd v Quasar Constructions NSW Pty Ltd [2004] NSWSC 1151, followed State of Queensland v Epoca Constructions Pty Ltd [2006] QSC 324, followed Thiess Watkins White…