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Amasya Enterprises Pty Ltd v Asta Developments (Aust) Pty Ltd (No 2)

Amasya Enterprises Pty Ltd v Asta Developments (Aust) Pty Ltd (No 2)

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Case Copied 18 September 2015 66 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST

S ECI 2014 000686

AMASYA ENTERPRISES PTY LTD & ANOR (in accordance with the schedule)	Plaintiffs
v
ASTA DEVELOPMENTS (AUST) PTY LTD & ANOR (in accordance with the schedule)	Defendants

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JUDGE:	VICKERY J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 July 2015
DATE OF JUDGMENT:	18 September 2015
CASE MAY BE CITED AS:	Amasya Enterprises Pty Ltd & Anor v Asta Developments (Aust) Pty Ltd & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 500

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BUILDING CONTRACTS - Building and Construction Industry Security of Payment Act2002 (Vic) – Adjudication conducted under the Act - Submission of a further substitute payment claim to correct mistakes and supplement an earlier payment claim delivered shortly prior, where otherwise it is the same as the earlier payment claim, not in breach of s 14(8) of the Act – Whether a payment schedule delivered complying with s 15 of the Act – Whether payment schedule delivered by email in compliance with the Act – Adjudication determination void for failure to consider a valid payment schedule - Adjudicator receives expert report and takes it into account without affording an opportunity to the other party to respond to it – Breach of natural justice - Adjudication determination void on ground of breach of natural justice - Adjudication determination quashed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr MG Roberts QC with Mr R Andrew of Counsel	Starnet Legal
For the First Defendant	Mr J Twigg QC with Mr N Andreou of Counsel	LMS Lawyers

HIS HONOUR:

The facts in this proceeding have been outlined in the Court’s earlier judgment in this matter, Amasya Enterprises Pty Ltd & Anor v Asta Developments (Aust) Pty Ltd & Anor[1] (the trial of the Preliminary Question).
[1][2015] VSC 233.

This proceeding arises out of a construction contract dated 10 October 2013 (the ‘Construction Contract’) between the First Defendant, Asta Developments (Aust) Pty Ltd as the contractor (the ‘Contractor’), and the Plaintiffs, Amasya Enterprises Pty Ltd and TEK Foods Pty Ltd who together were the proprietors (the ‘Proprietors’). The Construction Contract was for the construction of a warehouse/factory development at 882-900 Cooper Street, Somerton in Victoria.

The works proceeded during 2014. Between November 2013 and July 2014 the Proprietors paid the Contractor progress payments in the total sum of $2,912,598 (inclusive of GST).

On or about 10 October 2014 a purported payment claim (the ‘Payment Claim’) was served by the Contractor on the Proprietors under the Building and Construction Industry Security of Payment Act2002 (Vic) (the ‘Act’ or the ‘Victorian Act’[2]).
[2]Cf the Building and Construction Industry Security of Payment Act 1999 (NSW) (the ‘NSW Act’).

The Payment Claim is the subject of this proceeding. The claimant Contractor described in the Payment Claim the construction work the subject of the claim by reference to purchase orders which arose under the Construction Contract.

The Payment Claim comprised: Tax Invoice…

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: [2015] VSC 500
Decision Date: 18 September 2015

CaseChat Overview and Summary

In this case, the dispute was between Amasya Enterprises Pty Ltd and Asta Developments (Aust) Pty Ltd. The case revolved around the interpretation and application of the Building and Construction Industry Security of Payment Act 2002 (Vic) in the context of an adjudication process. The primary issue before the court was whether the adjudication determination was valid and whether it should be quashed.

The court had to determine if the submission of a further substitute payment claim, which corrected mistakes and supplemented an earlier payment claim, complied with the provisions of section 14(8) of the Act. Additionally, the court examined whether the payment schedule delivered complied with section 15 of the Act and if the schedule delivered by email was in compliance with the Act. The court also considered whether the adjudication determination was void for failure to consider a valid payment schedule and if the adjudicator's consideration of an expert report without providing the other party an opportunity to respond to it breached natural justice.

The court found that the adjudication determination was void due to the failure to consider a valid payment schedule and the breach of natural justice. The court held that the adjudicator's consideration of the expert report without providing the other party with an opportunity to respond to it was a breach of natural justice. Consequently, the adjudication determination was quashed by the court. The court's decision was based on the provisions of the Building and Construction Industry Security of Payment Act 2002 (Vic) and the principles of natural justice. The court's findings were grounded in the statutory requirements of the Act and the fundamental principles of procedural fairness.

Orders