BGC Construction Pty Ltd v Citygate Properties Pty Ltd

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BGC CONSTRUCTION PTY LTD -v- CITYGATE PROPERTIES PTY LTD [2016] WASC 88



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2016] WASC 88
Case No:CIV:1802/201523 OCTOBER, 5 & 19 NOVEMBER 2015
Coram:TOTTLE J18/03/16
50Judgment 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.

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

Full text does not contain this section.

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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