Austral Precast v Australia Cenvic

[2017] VSC 582

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMERCIAL COURT

TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST

S CI 2017 3815

IN THE MATTER of an application by Austral Precast (Vic) Pty Ltd for judgment to be entered pursuant to s 28R of the Building and Construction Industry Security of Payment Act 2002 (Vic).

AUSTRAL PRECAST (VIC) PTY LTD (ACN 145 070 837)	Plaintiff
v
AUSTRALIA CENVIC CONSTRUCTION PTY LTD (ACN 608 196 747)	Defendant

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	Decision made ‘on the papers’ having considered the ex parte application filed by the plaintiff.
DATE OF JUDGMENT:	26 September 2017
CASE MAY BE CITED AS:	Austral Precast v Australia Cenvic
MEDIUM NEUTRAL CITATION:	[2017] VSC 582

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BUILDING CONTRACTS – Construction dispute - Adjudication – Adjudication Certificate – Satisfaction of the requirements of the Building and Construction Industry Security of Payment Act 2002 (Vic), ss 28Q and 28R – Entry of judgment under the Building and Construction Industry Security of Payment Act 2002 (Vic), s 28R

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The Papers filed by the plaintiff:

1. Originating Motion dated 18 September 2017.

2. Affidavit of Jason Portas made 15 September 2017 and exhibits thereto.

3. Further Affidavit of Jason Portas made 21 September 2017.

4. Affidavit of David Edney made 18 September 2017 and exhibits thereto.

5. Further Affidavit of David Edney made 21 September 2017 and exhibits thereto.

HIS HONOUR:

1. Austral Precast (Vic) Pty Limited (the plaintiff), by application dated 19 September 2017, seeks judgment pursuant to s 28R of the Building and Construction Industry Security of Payment Act 2002 (Vic) (the Act) against Australia Cenvic Construction Pty Ltd (the defendant) in the amount of $1,861,872.46 and its costs of and incidental to that application.

1. In support of the plaintiff’s application for judgment pursuant to s 28R of the Act the plaintiff relied upon a number of affidavits sworn by the Directors of the plaintiff and its State Managers.[1]

   [1]Affidavit of Jason Portas, 15 September 2017 and exhibits thereto; Further Affidavit of Jason Portas, 21 September 2017, Affidavit of David Edney, 18 September 2017 and exhibits thereto, and Further Affidavit of David Edney made 21 September 2017 and exhibits thereto.  The affidavits of David Edney, 18 September 2017 and 21 September 2017 refer to the defendant’s mention of an application for judicial review of parts of the Adjudication Determination dated 31 August 2017, which application has not materialised.

1. The plaintiff’s affidavit material establishes the following:

(a)   by Construction Contract (the Contract) entered into in March 2016 the defendant sub-contracted with the plaintiff as Head Contractor.  Pursuant to the Contract the plaintiff agreed to undertake certain sub-contract works in relation to Project Riverina Stage 1, 18-24 Hopkins Street Footscray in the State of Victoria (the Project);

(b)   the plaintiff initiated an adjudication application under the Act in respect of unsatisfied payment claims under the Contract;

(c)    the plaintiff’s sub-contract works were in the nature of design, manufacture, and installation of 1,396 precast concrete panels and as part of the Project;

(d)  on 31 August 2017 Mr Ted Smithies (the Adjudicator) determined in relation to the plaintiff’s adjudication application that the defendant was liable to pay the plaintiff a total adjudicated amount in the sum of $1,829,983.58;[2]

(e)   by Adjudication Certificate issued in respect of the said Adjudication Determination, the Adjudicator certified that the defendant is liable to pay the plaintiff the sum of $1,861,872.46.[3]

[2]Affidavit of David John Edney, 18 September 2017, as a result of an error in the calculation of GST the Determination was corrected by the Adjudicator by Adjudication Determination dated 11 September 2017 (Exhibit ‘DJE-4’)

[3]Affidavit of Jason Portas, 15 September 2017, Exhibit ‘JP-2’.

1. Section 28R of the Act provides as follows:

Proceedings to recover amount payable under section 28M or 28N

(1)If an authorised nominating authority has provided an adjudication certificate to a person under section 28Q, the person may recover as a debt due to that person, in any court of competent jurisdiction, the unpaid portion of the amount payable under section 28M or 28N.

(2)A proceeding referred to in subsection (1) cannot be brought unless the person provided with the adjudication certificate files in the court—

(a)the adjudication certificate; and

(b)an affidavit by that person stating that the whole or any part of the amount payable under section 28M or 28N has not been paid at the time the certificate is filed.

(3)If the affidavit indicates that part of the amount payable under section 28M or 28N has been paid, judgment may be entered for the unpaid portion of that amount only.

(4)Judgment in favour of a person is not to be entered under this section unless the court is satisfied that the person liable to pay the amount payable under section 28M or 28N has failed to pay the whole or any part of that amount to that first-mentioned person.

(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—

(i)to bring any cross-claim against the person who brought the proceedings under subsection (1); or

(ii)to raise any defence in relation to matters arising under the construction contract; or

(iii)to challenge an adjudication determination or a review determination; and

(b)is required to pay into the court as security the unpaid portion of the amount payable under section 28M or 28N pending the final determination of those proceedings.

(6)Subsection (5)(a)(iii) does not prevent a person from challenging an adjudication determination or a review determination on the ground that the person making the determination took into account a variation of the construction contract that was not a claimable variation.

(7)A claimant may not bring proceedings under this section to recover an adjudicated amount under an adjudication determination if the claimant has made an adjudication review application in respect of that determination and that review has not been completed.

(8)Nothing in this section affects the operation of any Act requiring the payment of interest in respect of a judgment debt.

1. In this matter I am satisfied that the Adjudicator’s Adjudication Certificate dated 13 September 2017, in combination with exhibit ‘JP-2’ to the affidavit of Jason Portas sworn 15 September 2017, establish that the defendant is liable to pay the said sum of $1,861,872.46, pursuant to s 28M and s 28R of the Act and that the defendant has failed to pay the whole of the amount so certified and established as the plaintiff’s payment entitlement under the Act.

1. For the above reasons I shall order:

1.There be judgment for the plaintiff against the defendant, pursuant to s 28R of the Building and Construction Industry Security of Payment Act 2002 (Vic), in the amount of $1,861,872.46.

2.The defendant pay the plaintiff’s costs of and incidental to this application on the standard basis, such costs to be taxed in default of agreement.