Australian Remediation Services v Earth Tech Engineering - [2005] NSWSC 715

CITATION:
Australian Remediation Services v Earth Tech Engineering [2005] NSWSC 715

HEARING DATE(S): 14 July 2005

JUDGMENT DATE :

14 July 2005

JURISDICTION:
Equity

JUDGMENT OF:
Campbell J

DECISION:
Interlocutory injunction granted on conditions

CATCHWORDS:
BUILDING AND CONSTRUCTION - adjudication certificate under Building and Construction Industry Security of Payment Act 1999 issued - application for injunction to restrain appointing authority from issuing certificate relating to the determination, and to restrain recipient of the determination from filing any such certificate - balance of convenience - provision of bank guarantee - form of orders

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

CASES CITED:
Australian Remediation Services Pty Ltd v Earth Tech Engineering Pty Ltd [2005] NSWSC 362
Brodyn Pty Ltd t/as Time Cost and quality v Davenport (2004) 61 NSWLR 421

PARTIES:
Australian Remediation Services Pty Limited - Plaintiff
Earth Tech Engineering Pty Limited - First Defendant
Robert Hunt - Second Defendant
The Institute of Arbitrators & Mediators Australia NSW Chapter - Third Defendant

FILE NUMBER(S):
SC 55056/05

COUNSEL:
M S Jacobs QC - Plaintiff
R G Forster SC - First Defendant

SOLICITORS:
D Grynberg - Plaintiff
Allens Arthur Robinson - First Defendant
Unrepresented (Submitting Appearance) - Second Defendant
Colin Biggers & Paisley (Submitting Appearance) - Third Defendant

LOWER COURT JURISDICTION:

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

CAMPBELL J

THURSDAY 14 JULY 2005 &
FRIDAY 15 JULY 2005

55056/05 AUSTRALIAN REMEDIATION SERVICES PTY LIMITED v EARTH TECH ENGINEERING PTY LIMITED & ORS

JUDGMENT – Ex Tempore (Revised 18 July 2005)

1 HIS HONOUR:

Thursday 14 July 2005:

2 This is an application for interim relief. It arises from a situation where the plaintiff had engaged the first defendant to carry out certain work involving land remediation. On 14 March 2005 the first defendant served a Payment Claim under the Building and Construction Industry Security of Payment Act 1999 (“the Act”), seeking an amount in the order of $4.17m. On 22 March the plaintiff served a Payment Schedule under that Act, stating that no further amount was payable, as the contractual amount payable for the work had been capped, and as well the work was inadequate or defective.

3 This payment claim has been the subject of previous litigation in the Court. On 14 April 2005 McDougall J gave judgment in Australian Remediation Services Pty Ltd v Earth Tech Engineering Pty Ltd [2005] NSWSC 362 declining to prevent an adjudication in relation to the Payment Claim from commencing.

4 On 8 July 2005, the appointed adjudicator, the second defendant, delivered his adjudication to the parties. He held that an amount of $3,787,193.48 was due, together with interest at nine percent on that sum from 11 April 2005.

5 These proceedings were begun by the plaintiff and brought on, on an interlocutory basis with great urgency, seeking to restrain the third defendant, which was the appointing authority, from issuing a certificate relating to the determination, and to restrain the first defendant from…

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 Australian Remediation Services v Earth Tech Engineering 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: [2005] NSWSC 715
Decision Date: 14 July 2005

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Australian Remediation Services sought to restrain Earth Tech Engineering from filing an adjudication certificate under the Building and Construction Industry Security of Payment Act 1999. The dispute arose from a construction contract where Australian Remediation Services provided services to Earth Tech Engineering. Australian Remediation Services claimed that the certificate issued by the adjudicator was invalid due to procedural irregularities and sought an injunction to prevent Earth Tech Engineering from taking any action based on the certificate. The court was required to determine whether the balance of convenience favoured granting the injunction and whether a bank guarantee should be provided as a condition of the injunction.

The court considered the balance of convenience, examining the potential harm to each party if the injunction was granted or denied. It noted the significant prejudice Australian Remediation Services would suffer if forced to pay an amount that it claimed was not owed, and the relatively lesser impact on Earth Tech Engineering if required to delay payment. The court also assessed the likelihood of Australian Remediation Services succeeding on the merits of the case. Given the strong arguments presented by Australian Remediation Services regarding the invalidity of the adjudication certificate, the court found that the balance of convenience favoured granting the injunction. The court further determined that a bank guarantee should be provided by Australian Remediation Services as a condition of the injunction to mitigate potential losses to Earth Tech Engineering if the injunction was ultimately found to be wrongly granted.

The court issued an injunction restraining Earth Tech Engineering from filing the adjudication certificate and requiring Australian Remediation Services to provide a bank guarantee. The injunction was subject to Earth Tech Engineering being allowed to apply to set it aside if Australian Remediation Services failed to maintain the guarantee. The court's decision provided a temporary reprieve for Australian Remediation Services pending further determination of the underlying dispute.

Orders