Australian Remediation Services Pty Ltd v Earth Tech Engineering Pty Ltd - [2005] NSWSC 362

CITATION:
Australian Remediation Services Pty Ltd v Earth Tech Engineering Pty Ltd & Anor [2005] NSWSC 362

HEARING DATE(S): 14 April 2005

JUDGMENT DATE :

14 April 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
McDougall J at 1

DECISION:
Refer paragraph 16

CATCHWORDS:
Building & construction industry - Building and Constructions Industry Security of Payment Act - adjudication application - where plaintiff sought to restrain appointment of adjudicator - where plaintiff sought to restrain defendant from proceeding with adjudication application - whether adjudicator able to determine whether payment claims in adjudication application can be awarded - discretionary considerations.

LEGISLATION CITED:
Building and Construction Industry Security of Payment Act 1999

CASES CITED:
Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2005] NSWCA 49
Musico & Ors v Davenport & Ors [2003] NSW SC 977
Brodyn Pty Limited v Davenport [2004] NSWCA 394
Multiplex Constructions Pty Ltd v Luikens & Anor [2003] NSWSC 1140

PARTIES:
P: Australian Remediation Services Pty Ltd
D1: Earth Tech Engineering Pty Ltd
D2: The Institute of Arbitrators & Mediators Australia

FILE NUMBER(S):
SC 55030/05

COUNSEL:
P: MS Jacobs SC, PJ Bambagiotti
D1: M Christie

SOLICITORS:
P: Meriton Apartments Pty Ltd, Sydney
D1: Allens Arthur Robinson, Sydney
D2: Submitting

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

Thursday, 14 April 2005 ex tempore (revised 18 April 2005)

55030/05 AUSTRALIAN REMEDIATION SERVICES PTY LIMITED v EARTH TECH ENGINEERING PTY LIMITED & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff and the first defendant are parties to a “remediation deed” made on 17 October 2001. The plaintiff says that the deed has come to an end. The deed relates to remediation work for a site at Rhodes, apparently much contaminated, which the Meriton Group (of which I understand the plaintiff is a part) wishes to redevelop for home unit accommodation.

2 The first defendant takes the view the contract is one which is for the performance of construction work, or the supply of related goods and services, or both, for the purposes of the Building and Construction Industry Security of Payment Act 1999. It apparently made a payment claim under that Act; and, apparently the plaintiff has taken the view that the claim is not payable.

3 The first defendant has now made an adjudication application to the second defendant. The plaintiff seeks orders, on an interlocutory basis:

(1) restraining the first defendant from proceeding with that application; and

4 The nature of the plaintiff’s case may be gathered from prayers (a) to (e) of its amended summons, as follows:

“(a) A declaration that none of the claims made by the First Defendant in its payment claim under s 13(1) of the Building and Construction Security of Payment Act No 46 of 1999 (NSW) (the Act) fall within the definitions of construction work and/or related goods and services as defined in ss 5 and 6 of the Act.

(b)…

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: [2005] NSWSC 362
Decision Date: 14 April 2005

CaseChat Overview and Summary

The Australian court heard a case between Australian Remediation Services Pty Ltd and Earth Tech Engineering Pty Ltd, which concerned a dispute within the building and construction industry. The plaintiff sought to restrain the defendant from proceeding with an adjudication application, and also attempted to restrain the appointment of an adjudicator. The court had to determine whether the adjudicator could assess whether the payment claims in the adjudication application could be awarded, considering the discretionary factors involved.

The central legal issue revolved around the Building and Constructions Industry Security of Payment Act, specifically the procedures and powers of an adjudicator. The court had to examine the discretion of the adjudicator in determining whether the payment claims could be awarded, in light of the plaintiff's attempts to restrain the proceedings. The court also needed to consider the implications of the plaintiff's actions on the defendant's ability to seek timely resolution of the payment dispute.

The court examined the statutory provisions and the established case law to reach its decision. It found that the adjudicator had the necessary authority to determine whether the payment claims could be awarded, regardless of the plaintiff's attempts to restrain the proceedings. The court also considered the discretionary factors, which included the urgency of the matter and the potential prejudice to the parties. The court concluded that the adjudicator could proceed with the adjudication, and the plaintiff's attempts to restrain the proceedings were not sufficient to prevent the assessment of the payment claims.

The court ordered that the defendant could proceed with the adjudication application, and that the adjudicator could assess whether the payment claims could be awarded. The court also dismissed the plaintiff's application to restrain the appointment of the adjudicator. This decision ensured that the defendant could seek timely resolution of the payment dispute, in accordance with the provisions of the Building and Constructions Industry Security of Payment Act.

Orders