Agusta Industries v Niclad Constructions - [2010] NSWSC 925

CITATION: Agusta Industries v Niclad Constructions [2010] NSWSC 925

HEARING DATE(S): 30 July 2010

JUDGMENT DATE :
30 August 2010

JUDGMENT OF: Gzell J

DECISION: Summons dismissed. Plaintiff ordered to pay defendant's costs.

CATCHWORDS: Building and Construction - Building and Construction Industry Security of Payment Act 1999 - whether adjudicator's determination void for alleged failure of receipt of adjudication application - whether presumption of receipt of postal article - whether a denial of natural justice

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999
Evidence Act 1995
Acts Interpretation Act 1901 (Cth)

CASES CITED: TQM v Dasein [2004] NSWSC 1216
Falgat Constructions Pty Limited v Equity Australia Corporation Pty Limited [2006] NSWCA 259
Brodyn Pty Ltd v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421
Timwin Construction v Façade Innovations [2005] NSWSC 548
Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd & Anor [2005] NSWSC 1129

PARTIES: Agusta Industries Pty Limited (Plaintiff)
Niclad Constructions Pty Limited (Defendant)

FILE NUMBER(S): SC 2010/57655

COUNSEL: J Young (Plaintiff)

SOLICITORS: Colin Biggers & Paisley (Plaintiff)
Massey Bailey Solicitors & Consultants (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 30 AUGUST 2010

2010/57655 AGUSTA INDUSTRIES PTY LIMITED v NICLAD CONSTRUCTIONS PTY LIMITED

JUDGMENT

1 The plaintiff, Agusta Industries Pty Limited, claims that whether or not it received an adjudication application under the Building and Construction Industry Security of Payment Act 1999 (Security Act), it was denied natural justice and the determination made by the adjudicator was void.

2 The defendant, Niclad Constructions Pty Limited, carried out “construction work” for Agusta as that term is defined in s 5 of the Security Act. Under the building contract between the parties, Niclad was entitled to progress payments.

3 On 15 December 2008, Agusta withheld payment on the basis that it had offsetting charges. It itemised the amounts claimed by Niclad and the offsetting charges to that date.

4 On 20 December 2008, Niclad served a payment claim on Agusta in terms of s 13 of the Security Act.

5 On 16 January 2009, Agusta not having served a payment schedule under s 14 of the Security Act, Niclad served a notice under s 17(2)(a) notifying Agusta that it intended to apply for adjudication of its payment claim.

6 That drew a response from Agusta on the same day that referred back to its reconciliation of 15 December 2008. The adjudicator later found this to be a payment schedule.

7 Section 17(5) of the Security Act provides that a copy of an adjudication application must be served on the respondent concerned. On 4 February 2009, Niclad tried to send the adjudication application to Agusta by facsimile but there was a malfunction and portion only of the adjudication application was received by Agusta.

8 Angelo Ferella, the project manager of Agusta, said that approximately three pages were received. I do not accept that evidence. The facsimile transmission report recorded that the function was not completed but it also…

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.

Continue reading Agusta Industries v Niclad Constructions

Details

AGLC: Agusta Industries v Niclad Constructions [2010] NSWSC 925
Case: [2010] NSWSC 925
Decision Date: 30 August 2010

CaseChat Overview and Summary

The case of Agusta Industries versus Niclad Constructions involved a dispute between the two parties regarding the construction of a building. The matter was heard in the Supreme Court of Victoria. Agusta Industries, the applicant, sought to recover a sum of money from Niclad Constructions, the respondent, under the Building and Construction Industry Security of Payment Act 1999. The primary legal issues that the court had to decide were whether the adjudicator's determination was void due to the alleged failure to receive the adjudication application and whether the presumption of receipt of a postal article applied. Additionally, the court had to consider whether a denial of natural justice had occurred.

The court examined the circumstances under which the adjudication application was sent and whether the presumption of receipt applied. It was established that the application was sent via registered post, and the presumption of receipt applied. The court held that the presumption of receipt of a postal article is a rebuttable presumption and could be rebutted by evidence to the contrary. However, in this case, there was no evidence to rebut the presumption of receipt, and therefore, the presumption stood. The court also considered whether a denial of natural justice had occurred by not allowing the respondent to respond to the adjudication application. The court held that the respondent had not been denied natural justice as it had the opportunity to respond to the adjudication application.

The court concluded that the adjudicator's determination was not void and that the presumption of receipt of the postal article applied. The court also found that there was no denial of natural justice. The applicant's claim was dismissed with costs. The court held that the presumption of receipt of a postal article applied and that the respondent had not been denied natural justice. Therefore, the adjudicator's determination was valid, and the applicant's claim was dismissed. The respondent was awarded costs.

Orders