BGC CONSTRUCTION PTY LTD -v- CITYGATE PROPERTIES PTY LTD [2016] WASC 88
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 88 | |
| Case No: | CIV:1802/2015 | 23 OCTOBER, 5 & 19 NOVEMBER 2015 | |
| Coram: | TOTTLE J | 18/03/16 | |
| 50 | Judgment Part: | 1 of 1 | |
| Result: | The application in CIV 1802 of 2015 for leave to enforce the determinations dismissed The application in CIV 2028 of 2015 be allowed and the determination quashed The application in CIV 2029 of 2015 be allowed and the determination quashed | ||
| B | |||
| PDF Version |
| Parties: | BGC CONSTRUCTION PTY LTD CITYGATE PROPERTIES PTY LTD MARK JONES CITYGATE PROPERTIES PTY LD |
Catchwords: | Judicial review Jurisdictional error Adjudications under Construction Contracts Act 2004 (WA) Where jurisdictional error existed Certiorari granted Judicial review Jurisdictional facts Adjudications under Construction Contracts Act 2004 (WA) s 31(1), s 31(3), s 32(3)(a) Whether application determined within prescribed time Whether parties consented to extension of time Where no consent in fact Whether existence of consent is narrow (objective) or broad (subjective) jurisdictional fact Where adjudicator did not consider that parties had extended time Unnecessary to decide if narrow or broad jurisdictional fact Construction Contracts Act 2004 (WA) s 44 Where adjudicator requested fees before publishing determination Whether determination was complete at time fees requested Whether adjudicator requested fees in order to buy time Construction Contracts Act 2004 (WA) s 31(2)(b) Whether determination dealt with claims that were out of time Where insufficient evidence to determine if claims out of time Construction Contracts Act 2004 (WA) s 31(2)(b) Whether adjudicator made determination on balance of probabilities Where arithmetical and other errors in determination Errors were within jurisdiction Where slip rule would apply Whether adjudicator determined dispute other than by reference to terms of contract Construction Contracts Act 2004 (WA) s 32(2)(a) Where adjudicator accepted submissions in rebuttal from applicant No jurisdictional error Adjudicator entitled to request rebuttal materials Construction Contracts Act 2004 (WA) 29(1) Whether adjudicator had material personal interest in payment dispute Meaning of material personal interest Adjudicator had no interest in payment dispute Construction Contracts Act 2004 (WA) s 26(2)(a) Construction Contracts Regulations 2004 (WA) reg 4, reg 5 Whether application for adjudication contained respondent's contact details Where respondent's ABN appeared in attachments to application but not on application document itself Sufficient that ABN appeared in attachments Judicial review Jurisdictional error Construction Contracts Act 2004 (WA) s 36(d) Whether adjudicator gave adequate reasons Where sums of money did not add up Where impossible to work out how totals calculated Where treatment of some claims irrational and perverse Where reasons inadequate Whether jurisdictional error Inadequate reasons constituted constructive failure to exercise jurisdiction Construction Contracts Act 2004 (WA) Application to enforce Where determinations invalid Application dismissed Whether party may seek enforcement when it acknowledges that determination awarded incorrect amount |
Legislation: | Construction Contracts Act 2004 (WA), s 26, s 29, s 31, s 32, s 36 Construction Contracts Regulations 2004 (WA), reg 4, reg 5 |
Case References: | Alliance Contracting Pty Ltd v… |
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Details
- Case
- [2016] WASC 88
- Decision Date
CaseChat Overview and Summary
The case of BGC Construction Pty Ltd v Citygate Properties Pty Ltd involved a dispute between the two parties, with BGC Construction seeking to enforce certain determinations made under the Construction Contracts Act 2004 (WA). Citygate Properties challenged the validity of the determinations and sought to have them quashed. The Supreme Court of Western Australia was tasked with determining whether the adjudicator had made any jurisdictional errors in the adjudication process. The court examined several key legal issues, including whether the adjudicator had jurisdiction to determine the dispute, if the adjudicator had made any errors in calculating the amounts, and whether the reasons provided for the determinations were adequate.
The court found that there were several instances of jurisdictional error in the adjudication process. Firstly, the adjudicator did not consider that the parties had consented to an extension of time for the determination, despite evidence suggesting otherwise. The court did not need to decide whether the existence of consent was a narrow or broad jurisdictional fact, as it was clear that the adjudicator had not considered this issue. Additionally, the adjudicator had requested fees before publishing the determination, which may have been an attempt to buy time, and there was insufficient evidence to determine if the claims were out of time. The court also found that the adjudicator had made arithmetical and other errors in the determination, but these were within the adjudicator's jurisdiction, and the slip rule would apply.
Moreover, the court found that the adjudicator had not given adequate reasons for the determinations, as the sums of money did not add up, and it was impossible to work out how the totals were calculated. The treatment of some claims was irrational and perverse, and the reasons provided were inadequate. This constituted a constructive failure to exercise jurisdiction. Lastly, the court found that the application to enforce the determinations was invalid, as the party seeking enforcement acknowledged that the determination had awarded an incorrect amount. The application to enforce was dismissed, and the determinations were quashed.
In summary, the Supreme Court of Western Australia found that there were several jurisdictional errors in the adjudication process, leading to the quashing of the determinations. The court dismissed the application to enforce the determinations, as the party seeking enforcement had acknowledged that the determination had awarded an incorrect amount. The case highlights the importance of ensuring that adjudications are conducted properly and that any jurisdictional errors are identified and rectified.
The court found that there were several instances of jurisdictional error in the adjudication process. Firstly, the adjudicator did not consider that the parties had consented to an extension of time for the determination, despite evidence suggesting otherwise. The court did not need to decide whether the existence of consent was a narrow or broad jurisdictional fact, as it was clear that the adjudicator had not considered this issue. Additionally, the adjudicator had requested fees before publishing the determination, which may have been an attempt to buy time, and there was insufficient evidence to determine if the claims were out of time. The court also found that the adjudicator had made arithmetical and other errors in the determination, but these were within the adjudicator's jurisdiction, and the slip rule would apply.
Moreover, the court found that the adjudicator had not given adequate reasons for the determinations, as the sums of money did not add up, and it was impossible to work out how the totals were calculated. The treatment of some claims was irrational and perverse, and the reasons provided were inadequate. This constituted a constructive failure to exercise jurisdiction. Lastly, the court found that the application to enforce the determinations was invalid, as the party seeking enforcement acknowledged that the determination had awarded an incorrect amount. The application to enforce was dismissed, and the determinations were quashed.
In summary, the Supreme Court of Western Australia found that there were several jurisdictional errors in the adjudication process, leading to the quashing of the determinations. The court dismissed the application to enforce the determinations, as the party seeking enforcement had acknowledged that the determination had awarded an incorrect amount. The case highlights the importance of ensuring that adjudications are conducted properly and that any jurisdictional errors are identified and rectified.
Orders
Orders of the court
The application in CIV 1802 of 2015 for leave to enforce the determinations dismissed
The application in CIV 2028 of 2015 be allowed and the determination quashed
The application in CIV 2029 of 2015 be allowed and the determination quashed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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