Altys Multi-Services Pty Ltd v Grandview Modular Building Systems P/L

SUPREME COURT OF QUEENSLAND

CITATION:	Altys Multi-Services Pty Ltd v Grandview Modular Building Systems P/L [2008] QSC 26
PARTIES:	ALTYS MULTI-SERVICES PTY LTD ACN 097 363 470 (applicant) v GRANDVIEW MODULAR BUILDING SYSTEMS PTY LTD ACN 124 190 659 (first respondent) JOHN L O’BRIEN (second respondent) ADJUDICATE TODAY PTY LTD ABN 39 109 605 021 (third respondent)
FILE NO:	7324 of 2007
DIVISION:	Trial Division
PROCEEDING:	Civil proceeding
DELIVERED ON:	21 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	15 February 2008
JUDGE:	Acting Justice Skoien
ORDER:	Application dismissed
CATCHWORDS:	JUDICIAL REVIEW OF ADJUDICATION UNDER BUILDING AND CONSTRUCTION INDUSTRY PAYMENTS ACT 2004;  DISADVANTAGES IN REVIEW PROCEDURE;  PREFERABILITY OF CURIAL LITIGATION Building and Construction Industry Payments Act 2004, ss 10, 17, 18, 100 Queensland Building Services Authority Act 1991, s. 42 Judicial Review Act 1991, ss 10, 13 Intero Hospitality Projects Pty Ltd v Empire Interior Pty Ltd [2007) QSC 220 Roadtek, Department of Main Roads v Davenport & Ors [2006] QSC 47 Shell Refining (Australia) Pty Ltd v  AJ Mayr Engineering [2006] NSWSC 94 at para [27] Lucas Stuart Pty Ltd v Council of the City of Sydney [2005] NSWSC 840 at para [13]. Brodyn Pty Ltd v Davenport [2003] NSWSC 1019 Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA) Pty Ltd [2007] QSC 333
COUNSEL:	Mr DJS Jackson QC with him Mr M Ambrose for applicant Mr S Doyle SC with him Mr MK Stunden for first respondent
SOLICITORS:	Phillips Fox for applicant Ebsworth & Ebsworth for first respondent

1. : ACTING JUSTICE SKOIENThis is an application by Altys under s 20 of the Judicial Review Act 1991 to review the adjudication of Mr O’Brien (“the adjudicator”) made under the provisions of the Building and Construction Industry Payments Act 2004 (“the Payments Act”) that Altys pay to Grandview a sum of money, being a progress payment under a building contract with interest and the adjudicator’s fees.

Grounds

1. Altys argues that:

(a)         the adjudicator did not have jurisdiction to reach that adjudication;
(b)         parts of the adjudication were not authorised by the Payments Act;
(c)         the adjudication involved errors of law;
(d)        there was no evidence or other material to justify making the adjudication.

Background

1. Altys had been awarded a contract to construct a mining village in Dysart,

   
   Central Queensland

   .  Grandview is a company which specialises in the design, manufacture and supply of construction materials, specifically pre-fabricated, plastic wrapped “flat pack” style modular accommodation systems and successfully contracted with Altys for the supply of modular accommodation units to Dysart.  The adjudicated sum is a progress payment under that contract.  It consisted of alleged variations of the contract.

Legislation

1. The long title of the Payments Act describes it as an Act to imply terms in construction contracts and to provide for adjudication of payment disputes in such contracts.  Its relevant object (s 7(a)) is to ensure that a person is entitled to receive, and is able to recover, progress payments if the person undertakes to carry out construction…