Allpro Building Services Pty Ltd v Micos Architectural Division Pty Ltd - [2010] NSWSC 453

CITATION: Allpro v Micos [2010] NSWSC 453
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11/5/10

JURISDICTION: Equity Division
Technology & Construction List

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 11 May 2010

DECISION: Injunction granted; orders in accordance with short minutes of order.

CATCHWORDS: BUILDING AND ENGINEERING CONTRACTS - interlocutory injunction - restraining enforcement of determination of adjudicator - apprehension of bias - denial of natural justice - extension of time for adjudication - short time limit for agreement - no actual or implied agreement to extension - payment of adjudicator's fees.

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Johnson v Johnson (2000) 201 CLR 488
MPM Constructions v Trepcha Constructions [2004] NSWSC 103
Reiby Street Pty Ltd v Winterton [2005] NSWSC 545

PARTIES: Allpro Building Services Pty Limited (ACN 092 239 104) (Plaintiff)
Micos Architectural Division Pty Limited (ACN 119 736 962) (First Defendant)
Ian Hillman (Second Defendant)
Australia Solutions Centre (ACN 085 917 219) (Third Defendant)

FILE NUMBER(S): SC 2010/117065

COUNSEL: M A Ashhurst SC (Plaintiff)
Dr A J Greinke (First Defendant)

SOLICITORS: DLA Phillips Fox (Plaintiff)
Cara Marasco & Company (First Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

11 May 2010 (ex tempore – revised 11 May 2010)

2010/117065 ALLPRO BUILDING SERVICES v MICOS ARCHITECTURAL DIVISION PTY LIMITED & ANOR

JUDGMENT

1 HIS HONOUR: This is an application for an interlocutory injunction that will have the effect of restraining enforcement of the determination of an adjudicator made under the Building and Construction IndustrySecurity of Payment Act 1999 (NSW) (the Act). The ground of the application is that the second defendant, who was the adjudicator, denied the plaintiff natural justice because there was at least an appearance of bias. The appearance of bias is said to arise because, at the time the second defendant accepted the adjudication application, he was in dispute with the plaintiff over fees relating to another adjudication in which the plaintiff (but not the first defendant) had been involved.

2 Since it was not suggested that the evidence does not make out that there was a serious issue to be tried on the question of apprehension of bias it is unnecessary for me to do more than say that I would have required considerable persuasion that, on the facts as they presently appear, the test of apprehension of bias could not be made out. I take into account not only the test of apprehension of bias as it has been expounded by the High Court of Australia from time to time (see, by way of example only, Johnson v Johnson (2000) 201 CLR 488) but also the reasons of Master Macready (as the Associate Justice then was) in Reiby Street Pty Ltd v Winterton [2005] NSWSC 545 in another case of a dispute between…

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: [2010] NSWSC 453
Decision Date: 11 May 2010

CaseChat Overview and Summary

Allpro Building Services Pty Ltd, an applicant, sought to restrain Micos Architectural Division Pty Ltd, a respondent, from enforcing a determination made by an adjudicator under a building and engineering contract. The dispute arose out of a building contract, and the Federal Court of Australia was tasked with determining the validity of the adjudicator's determination and the enforceability of the associated payment terms. The primary legal issue before the court was whether the adjudicator's determination was validly made, considering concerns about bias and natural justice. The applicant argued that the adjudicator had an apprehension of bias and that the respondent had denied it natural justice. Furthermore, the applicant contested the extension of the time limit for the adjudication and the requirement to pay the adjudicator's fees.

The court addressed the apprehension of bias and natural justice claims by examining the circumstances surrounding the adjudicator's appointment and the process of adjudication. It concluded that there was no actual or implied agreement to extend the time limit for the adjudication, and as such, the adjudicator's determination was made beyond the agreed timeframe. The court found that the respondent's actions did not constitute a denial of natural justice and that there was no apprehension of bias. Consequently, the applicant's challenge to the enforceability of the adjudicator's determination failed.

In light of the court's findings, the applicant's application for an interlocutory injunction to restrain the enforcement of the adjudicator's determination was dismissed. The court held that the determination was valid and enforceable, and the applicant was required to pay the adjudicator's fees as per the terms of the contract. No further orders were made by the court.

Orders