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Argyle Building Services Pty Ltd v Dalanex Pty Ltd (No 2)

Argyle Building Services Pty Ltd v Dalanex Pty Ltd (No 2)

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Case Copied 10 August 2022 66 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL DIVISION

TECHNOLOGY, ENGINEERING & CONSTRUCTION LIST

S ECI 2021 04907

ARGYLE BUILDING SERVICES PTY LTD (ACN 151 322 520)	Plaintiff
v
DALANEX PTY LTD trading as RK BASEMENT & STRUCTURE SOLUTIONS (ABN 98 372 123 062)	First Defendant
JOHN McMULLAN	Second Defendant

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JUDGE:	DELANY J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 April 2022; further written submissions 19 April 2022 and 3 May 2022
DATE OF JUDGMENT:	10 August 2022
CASE MAY BE CITED AS:	Argyle Building Services Pty Ltd v Dalanex Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 452

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ADMINISTRATIVE LAW – Building and construction – Judicial review – Adjudication under Part 3 Division 2 of the Building Industry Security of Payment Act 2002 (Vic) – Application for certiorari and declarations – Whether subcontract specified reference date – Inconsistency between contractual provisions – Reference date unable to be determined by reference to contract – Adjudicator correctly applied s 9(2)(b) of Act – Purported unilateral withdrawal of payment claim – Second payment claim purportedly served in respect of single payment claim a nullity – No jurisdictional error established – Notice issued pursuant to s 21(2B) – Whether submissions to adjudicator ‘duly made’ – Whether adjudication determination contravened s 23(2B) – Contravention of s 23(2B) not proved – Building Industry Security of Payment Act 2002 (Vic) ss 9(2), 15(2)-(3), 19, 21(2B), 22(5), 23(2), 23(2A), 23(2B) – Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340, MAAG Developments Pty Ltd v Oxanda Childcare Pty Ltd [2018] VSCA 289, Cool Logic Pty Ltd v Citi-Con (Vic) Pty Ltd [2020] VCC 1261, Fitzgerald v Masters (1956) 95 CLR 420, Valeo Construction Pty Ltd v Pentas Property Investments Pty Ltd [2018] VSC 243, Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190, Trustees of the Roman Catholic Church for the Diocese of Lismore v TF Woollam and Son Pty Ltd [2012] NSWSC 1559, Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248, Acciona Infrastructure Australia Pty Ltd v Chess Engineering Pty Ltd [2020] NSWSC 1423, Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd (2009) 26 VR 112, Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 referred to – Citi-Con (Vic) Pty Ltd v Punton’s Shoes Pty Ltd [2020] VCC 804, Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd [2009] NSWCA 157, John Holland Pty Ltd v Roads and Traffic Authority of NSW [2007] NSWCA 19, Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Craig QC with Mr A Blunt	Thomson Geer
For the Defendants	Mr M Robins QC with Mr D Dudderidge	Ward & Co

TABLE OF CONTENTS

Introduction and Overview.............................................................................................................. 1

The Legislation...................................................................................................................................…

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: [2022] VSC 452
Decision Date: 10 August 2022

CaseChat Overview and Summary

Argyle Building Services Pty Ltd brought an action against Dalanex Pty Ltd seeking a writ of certiorari and declarations regarding an adjudication decision under the Building Industry Security of Payment Act 2002 (Vic). The dispute arose from a payment claim submitted by Argyle, which was adjudicated by an adjudicator appointed by Dalanex. The primary legal issues before the court were whether the reference date was specified in the subcontract, whether there was an inconsistency between contractual provisions, and whether the adjudicator applied the relevant sections of the Act correctly. Additionally, the court considered whether the second payment claim served by Argyle was a nullity and whether the adjudication determination contravened section 23(2B) of the Act.

The court found that the reference date could not be determined by reference to the contract and the adjudicator correctly applied section 9(2)(b) of the Act. The court also determined that the second payment claim served by Argyle in respect of the single payment claim was a nullity. The court held that no jurisdictional error was established in the adjudication process and that the submissions made to the adjudicator were duly made. Furthermore, the court found that the adjudication determination did not contravene section 23(2B) of the Act. The court's reasoning was based on the interpretation of the relevant statutory provisions and the principles of judicial review.

In conclusion, the court dismissed Argyle's application for a writ of certiorari and declarations. The court found that the adjudicator's decision was not flawed and that there was no jurisdictional error in the adjudication process. The court also held that the second payment claim served by Argyle was a nullity and that there was no contravention of section 23(2B) of the Act. The court's decision was based on a thorough analysis of the relevant statutory provisions and the principles of judicial review. The orders made by the court reflected its findings and conclusions.

Orders