Bezzina Developers Pty Ltd v Deemah Stone (Qld) Pty Ltd - [2007] QSC 286

SUPREME COURT OF QUEENSLAND

CITATION:

Bezzina Developers P/L v Deemah Stone (Qld) P/L [2007] QSC 286

PARTIES:

BEZZINA DEVELOPERS PTY LTD ACN 079 373 470
(applicant)

v

DEEMAH STONE (QLD) PTY LTD ACN 115 129 014
(first respondent)

MAX TONKIN
(second respondent)

HELEN DURHAM
(third respondent)

ADJUDICATE TODAY PTY LTD ABN 32 109 605 021
(fourth respondent)

FILE NO:

BS 3546 of 2007

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

8 October 2007

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

21 September 2007

JUDGE:

Douglas J

ORDER:

Further submissions sought as to the terms of the order and costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – application for judicial review of decision of adjudicator made under Building and Construction Industry Payments Act 2004 (Qld) - whether parties were parties to a construction contract – whether adjudicator had valued work done under the construction contract – where second adjudicator failed to take into account s. 27 of the Act and its effect on his obligation to value the work which was the subject of the payment claim before him by giving it the same value as that previously decided in an earlier adjudication application - because of failure to apply s. 27, refusal of relief under s. 100 not appropriate- necessary extension of time under s. 26 of the JR Act granted for the making of a statutory order of review.

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – – application for judicial review of decision of adjudicator made under Building and Construction Industry Payments Act 2004 (Qld) - whether parties were parties to a construction contract – whether adjudicator had valued work done under the construction contract – where second adjudicator failed to take into account s. 27 of the Act and its effect on his obligation to value the work which was the subject of the payment claim before him by giving it the same value as that previously decided in an earlier adjudication application - because of failure to apply s. 27, refusal of relief under s. 100 not appropriate- necessary extension of time under s. 26 of the JR Act granted for the making of a statutory order of review.

Building and Construction Industry Payments Act 2004, s14, s24(4), s25(4)(a), s26(2), S26(3)(a), s25(4), s27, s27(2), s100
Judicial Review Act 1991, s 13, 20(2)(c), s26
Justice and Other Legislation Amendment Bill 2007

ACN 060 559 971 Pty Ltd v O’Brien [2007] QSC 91, cited
Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2007] FCA 1480, cited
Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292, cited
Brodyn Pty Ltd v Devonport (2004) 61 NSWLR 421, cited
Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 21 BCL 312; [2005] NSWSC 77, considered and distinguished
Craig…

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: [2007] QSC 286
Decision Date: 8 October 2007

CaseChat Overview and Summary

Bezzina Developers Pty Ltd sought judicial review of a decision made by an adjudicator under the Building and Construction Industry Payments Act 2004 (Qld). The dispute involved whether the parties were indeed parties to a construction contract and whether the adjudicator had correctly valued the work done under the contract. The application was heard in the Queensland Supreme Court, which was tasked with examining the adjudicator's application of section 27 of the Act. This section is critical as it mandates that the value attributed to the work in the current adjudication must match the value previously determined in an earlier adjudication application.

The court examined the adjudicator's failure to consider section 27 and its implications on his obligation to value the work consistently. The adjudicator's oversight meant that the value given in the current adjudication did not align with the previous determination, which was a clear error of law. This oversight rendered the adjudicator's decision flawed and necessitated judicial intervention. The court concluded that, due to this procedural misstep, the refusal of relief under section 100 of the Act was not appropriate. Consequently, the court granted an extension of time under section 26 of the Judicial Review Act to allow for the making of a statutory order of review.

The court's decision was grounded in the necessity to correct the procedural error made by the adjudicator. It emphasised the importance of adhering to statutory requirements to ensure the integrity of the adjudication process. The court's ruling underscores the critical nature of section 27 in maintaining consistency and fairness in construction contract adjudications. The final orders included a request for further submissions regarding the terms of the order and costs associated with the judicial review process.

Orders

Orders of the court

Further submissions sought as to the terms of the order and costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bezzina Developers P/L v Deemah Stone (Qld) P/L [2007] QSC 286
PARTIES:	BEZZINA DEVELOPERS PTY LTD ACN 079 373 470 (applicant) v DEEMAH STONE (QLD) PTY LTD ACN 115 129 014 (first respondent) MAX TONKIN (second respondent) HELEN DURHAM (third respondent) ADJUDICATE TODAY PTY LTD ABN 32 109 605 021 (fourth respondent)
FILE NO:	BS 3546 of 2007
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	8 October 2007
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	21 September 2007
JUDGE:	Douglas J
ORDER:	Further submissions sought as to the terms of the order and costs.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – application for judicial review of decision of adjudicator made under Building and Construction Industry Payments Act 2004 (Qld) - whether parties were parties to a construction contract – whether adjudicator had valued work done under the construction contract – where second adjudicator failed to take into account s. 27 of the Act and its effect on his obligation to value the work which was the subject of the payment claim before him by giving it the same value as that previously decided in an earlier adjudication application - because of failure to apply s. 27, refusal of relief under s. 100 not appropriate- necessary extension of time under s. 26 of the JR Act granted for the making of a statutory order of review. CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – – application for judicial review of decision of adjudicator made under Building and Construction Industry Payments Act 2004 (Qld) - whether parties were parties to a construction contract – whether adjudicator had valued work done under the construction contract – where second adjudicator failed to take into account s. 27 of the Act and its effect on his obligation to value the work which was the subject of the payment claim before him by giving it the same value as that previously decided in an earlier adjudication application - because of failure to apply s. 27, refusal of relief under s. 100 not appropriate- necessary extension of time under s. 26 of the JR Act granted for the making of a statutory order of review. Building and Construction Industry Payments Act 2004, s14, s24(4), s25(4)(a), s26(2), S26(3)(a), s25(4), s27, s27(2), s100 Judicial Review Act 1991, s 13, 20(2)(c), s26 Justice and Other Legislation Amendment Bill 2007 ACN 060 559 971 Pty Ltd v O’Brien [2007] QSC 91, cited Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2007] FCA 1480, cited Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292, cited Brodyn Pty Ltd v Devonport (2004) 61 NSWLR 421, cited Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 21 BCL 312; [2005] NSWSC 77, considered and distinguished Craig…