Asta Developments (Aust) Pty Ltd v Amasya Enterprises Pty Ltd - [2016] VSCA 186

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0118

ASTA DEVELOPMENTS (AUST) PTY LTD (ACN 146 914 703)	Applicant
v
AMASYA ENTERPRISES PTY LTD (ACN 145 743 915)	First Respondent
TEK FOODS PTY LTD (ACN 115 663 262)	Second Respondent

---

JUDGES:	WHELAN and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	3 August 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 186
JUDGMENT APPEALED FROM:	[2015] VSC 233 and [2015] VSC 500 (Vickery J)

---

COSTS – Costs order on dismissal of application for extension of time for leave to appeal and application for leave to appeal – Events overtaken by arbitration award – No live controversy between the parties – No hearing on the merits – Applicant acted reasonably – No order as to costs – Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622.

---

APPEARANCES:	Counsel	Solicitors
No appearances

Background

On 10 October 2013 the applicant agreed to construct an industrial facility for the respondents (‘the contract’). The applicant commenced works under the contract in December 2013.

On or about 10 October 2014 the applicant builder served a payment claim on the respondent proprietors under the Building and Construction Industry Security of Payment Act 2002 (‘the Act’). No part of the payment claim was paid by the due date for payment. Accordingly, by application dated 29 October 2014, the applicant sought adjudication under s 18 of the Act.

On 18 November 2014 the adjudicator determined that the payment claim was validly made under the Act (‘the adjudication determination’). The claim was not paid.

On or about 12 December 2014 the applicant builder entered judgment against the respondents in the sum of $2,030,222.86 pursuant to s 28R of the Act. The judgment was entered according to the procedure outlined in the Act, on the basis of the adjudication determination and an adjudication certificate subsequently issued under s 28Q of the Act following non-payment of the adjudicated amount.

On 16 December 2014 the respondents commenced proceedings seeking judicial review under Order 56 of the Supreme Court (General Civil Procedure Rules) 2005 of the adjudication determination on a number of grounds.

At an initial directions hearing the applicant builder submitted that the respondents’ proceedings could not be maintained because there could not be a challenge to the judgment by reason of s 28R(5)(a)(iii) of the Act. This section relevantly provides:

(5)If a person commences proceedings to have the judgment set aside, that person —
(a) subject to subsection (6), is not, in those proceedings, entitled —
…
(iii) to challenge an adjudication determination or a review determination; …

The court then ordered, pursuant to r 47.04, that the following question be fixed for a separate trial:

Whether the [respondents’] challenge to the adjudication determination dated 18 November 2014 can be sustained in the light of s 28R(5) of the [Act]?

On 2 June 2015 Vickery J determined the…

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.

Keep reading for free

Create a free CaseChat account to read Asta Developments (Aust) Pty Ltd v Amasya Enterprises Pty Lt... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] VSCA 186
Decision Date: 3 August 2016

CaseChat Overview and Summary

Asta Developments (Aust) Pty Ltd filed a claim against Amasya Enterprises Pty Ltd in the Supreme Court of Queensland. The dispute centred around the terms of a development agreement and the subsequent events that led to the termination of that agreement. The applicants sought an extension of time for leave to appeal and leave to appeal the dismissal of their initial application. The case was dismissed, and the applicants were required to address the associated costs.

The court had to determine whether the applicants' conduct in seeking the extension of time and leave to appeal was reasonable, and if so, whether the respondents were entitled to costs. The key issue was whether there was a live controversy between the parties at the time of the dismissal, as this would determine the applicability of the principle that no order should be made as to costs where there is no live controversy. Additionally, the court considered whether the applicants' actions were reasonable, which would influence the outcome of the costs order.

The court found that the applicants had acted reasonably in seeking the extension of time and leave to appeal, as the events leading to the arbitration award had overtaken the original proceedings. There was no live controversy between the parties at the time of the dismissal, as the matter was already subject to arbitration. Therefore, following the precedent in Lai Qin, the court concluded that no order should be made as to costs. The dismissal of the application for an extension of time and leave to appeal did not result in the respondents being entitled to costs.

The court's decision did not result in any order being made as to costs for either party. The applicants' reasonable conduct in pursuing the extension of time and leave to appeal, coupled with the absence of a live controversy, led to this outcome.

Orders