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 2007DIVISION:
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 madeORDERS:
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…
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- Case
- [2008] QCA 213
- Decision Date
CaseChat Overview and Summary
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
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