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Bezzina Developers Pty Ltd v Deemah Stone (Qld) Pty Ltd

Bezzina Developers Pty Ltd v Deemah Stone (Qld) Pty Ltd

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Case Copied 1 August 2008 36 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Bezzina Developers P/L v Deemah Stone (Qld) P/L & Ors [2008] QCA 213

PARTIES:

BEZZINA DEVELOPERS PTY LTD ACN 079 373 470
(applicant/first respondent)
v
DEEMAH STONE (QLD) PTY LTD ACN 115 129 014
(first respondent/appellant)
MAX TONKIN
(second respondent)
HELEN DURHAM
(third respondent)
ADJUDICATE TODAY PTY LTD ACN 109 605 021
(fourth respondent)

FILE NO/S:

Appeal No 9882 of 2007
BS No 6000 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

17 April 2008

JUDGES:

McMurdo P, Keane JA and Fraser JA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Allow the appeal and set aside the orders made on 7 November 2007 1.

In lieu thereof order that the application for an order of review and other relief filed by the first respondent (matter no. BS 6000 of 2007) be dismissed with costs to be assessed on the standard basis 2.

First respondent pay the appellant's costs of and incidental to the appeal, save for the costs of the appeal record, which should be borne by the appellant3.

CATCHWORDS:

ARBITRATION – CONDUCT OF THE ARBITRATION PROCEEDINGS – POWERS, DUTIES AND DISCRETION OF THE ARBITRATOR – GENERALLY – where the first respondent contended that the second respondent (an adjudicator) had erred in law by failing to make a bona fide attempt to value the work in a progress claim submitted to him – where s 26 of the Building and Construction Industry Payments Act 2004 (Qld) required the second respondent to decide and not to inquire when making an adjudication decision – where subsections (c) and (d) of s 26(2) required the second respondent to consider the payment claim and submissions as well as any payment schedules and any submissions in support of it in adjudicating the dispute – where the second respondent’s reasons for the adjudication decision referred to the relevant background matters, parts of the payment schedule, the first respondent’s failure to lodge an adjudication response and the second respondent’s understanding of several paragraphs of the schedule – whether the second respondent failed to value the work in a manner required by the Act

ARBITRATION – CONDUCT OF THE ARBITRATION PROCEEDINGS – POWERS, DUTIES AND DISCRETION OF THE ARBITRATOR – GENERALLY – where s 27 of the Building and Construction Industry Payments Act 2004 (Qld) requires that where a subsequent adjudication occurs in which work is valued that was valued in a previous adjudication, the adjudicator must use the same value unless the claimant or respondent satisfies the adjudicator concerned that the value of the work has changed since the previous decision – where the third respondent made a decision regarding progress payment 12 submitted by the appellant – where that decision was not released until 13 April 2007 – where the second respondent made a decision on 4 April 2007 regarding progress…

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: [2008] QCA 213
Decision Date: 1 August 2008

CaseChat Overview and Summary

The case of Bezzina Developers Pty Ltd v Deemah Stone (Qld) Pty Ltd concerns an arbitration dispute under the Building and Construction Industry Payments Act 2004 (Qld). The primary dispute revolves around the adjudication of progress claims submitted by the appellant, Bezzina Developers, and the decisions made by the adjudicator, the second respondent. The first respondent, Deemah Stone (Qld) Pty Ltd, challenged the adjudicator's decisions on the grounds of alleged errors in law and procedural fairness. The court was tasked with determining whether the adjudicator correctly exercised his powers and duties under the Act, including whether he was required to value work in a manner consistent with previous adjudications and whether he should have sought further submissions from the parties.

The legal issues before the court included whether the adjudicator was required to make a bona fide attempt to value the work in the progress claims, whether the adjudicator was obligated to consider previous adjudications even if not informed by the parties, and whether the adjudicator was required to seek further submissions regarding prior adjudications. These issues hinged on the interpretation of sections 26 and 27 of the Building and Construction Industry Payments Act 2004 (Qld). The court examined whether the adjudicator's failure to adhere to these statutory requirements constituted a jurisdictional error warranting relief under the Judicial Review Act 1991 (Qld).

The court found that the adjudicator did not err in law by failing to make a bona fide attempt to value the work, as section 26 of the Act required the adjudicator to decide rather than inquire. However, the court held that section 27 did impose an obligation on the adjudicator to value work consistently with previous adjudications unless informed otherwise. The adjudicator's failure to consider the prior adjudication decision constituted a jurisdictional error, as it did not align with the statutory requirements. Additionally, the court ruled that while the adjudicator had the power to seek further submissions under section 25(4)(a), this was not a mandatory obligation under section 27.

The appeal was allowed, and the orders made on 7 November 2007 were set aside. In lieu of those orders, the court ordered that the application for an order of review and other relief filed by the first respondent be dismissed with costs to be assessed on the standard basis. Furthermore, the first respondent was ordered to pay the appellant's costs of and incidental to the appeal, except for the costs of the appeal record, which were to be borne by the appellant.

Orders

Orders of the court

Allow the appeal and set aside the orders made on 7 November 2007 1.

In lieu thereof order that the application for an order of review and other relief filed by the first respondent (matter no. BS 6000 of 2007) be dismissed with costs to be assessed on the standard basis 2.

First respondent pay the appellant's costs of and incidental to the appeal, save for the costs of the appeal record, which should be borne by the appellant3.

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 & Ors [2008] QCA 213
PARTIES:	BEZZINA DEVELOPERS PTY LTD ACN 079 373 470 (applicant/first respondent) v DEEMAH STONE (QLD) PTY LTD ACN 115 129 014 (first respondent/appellant) MAX TONKIN (second respondent) HELEN DURHAM (third respondent) ADJUDICATE TODAY PTY LTD ACN 109 605 021 (fourth respondent)
FILE NO/S:	Appeal No 9882 of 2007 BS No 6000 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	1 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	17 April 2008
JUDGES:	McMurdo P, Keane JA and Fraser JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Allow the appeal and set aside the orders made on 7 November 2007 1. In lieu thereof order that the application for an order of review and other relief filed by the first respondent (matter no. BS 6000 of 2007) be dismissed with costs to be assessed on the standard basis 2. First respondent pay the appellant's costs of and incidental to the appeal, save for the costs of the appeal record, which should be borne by the appellant3.
CATCHWORDS:	ARBITRATION – CONDUCT OF THE ARBITRATION PROCEEDINGS – POWERS, DUTIES AND DISCRETION OF THE ARBITRATOR – GENERALLY – where the first respondent contended that the second respondent (an adjudicator) had erred in law by failing to make a bona fide attempt to value the work in a progress claim submitted to him – where s 26 of the Building and Construction Industry Payments Act 2004 (Qld) required the second respondent to decide and not to inquire when making an adjudication decision – where subsections (c) and (d) of s 26(2) required the second respondent to consider the payment claim and submissions as well as any payment schedules and any submissions in support of it in adjudicating the dispute – where the second respondent’s reasons for the adjudication decision referred to the relevant background matters, parts of the payment schedule, the first respondent’s failure to lodge an adjudication response and the second respondent’s understanding of several paragraphs of the schedule – whether the second respondent failed to value the work in a manner required by the Act ARBITRATION – CONDUCT OF THE ARBITRATION PROCEEDINGS – POWERS, DUTIES AND DISCRETION OF THE ARBITRATOR – GENERALLY – where s 27 of the Building and Construction Industry Payments Act 2004 (Qld) requires that where a subsequent adjudication occurs in which work is valued that was valued in a previous adjudication, the adjudicator must use the same value unless the claimant or respondent satisfies the adjudicator concerned that the value of the work has changed since the previous decision – where the third respondent made a decision regarding progress payment 12 submitted by the appellant – where that decision was not released until 13 April 2007 – where the second respondent made a decision on 4 April 2007 regarding progress…