BOCOL CONSTRUCTIONS PTY LTD and KESLAKE GROUP PTY LTD [2017] WASAT 15

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2017] WASAT 15
Act:	CONSTRUCTION CONTRACTS ACT 2004 (WA)
Case No:	CC:1079/2016	Heard:	29 SEPTEMBER 2016
Coram:	MS P LE MIERE (MEMBER)	Delivered:	17/01/17
No of pages:	30	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	BOCOL CONSTRUCTIONS PTY LTD KESLAKE GROUP PTY LTD
Catchwords:	State Administrative Tribunal Act 2004 (WA), s 20(1) State Administrative Tribunal Rules 2004 (WA), r 9, r 10 Whether an extension of time is required where no notice is given of a party's rights to apply for a review Construction Contracts Act 2004 (WA) Whether the description of the respondent as 'Trustee for' rather than using the trustee's correct name in the application for adjudication complied with the Act and Regulations Whether a claim for damages for breach of an implied term of the contract is a 'payment claim' under the contract
Legislation:	Construction Contracts Act 2004 (WA), s 3, s 16, s 26, s 30, s 31(2)(a), s 46(1), Sch 1 - Div 4 cl 5 and Div 5 cl 6 cl 7 Construction Contracts Regulations 2004 (WA), reg 4, reg 5, reg 7 Interpretation Act 1984 (WA), s 18, s 74 State Administrative Tribunal Act 2004 (WA), s 20(1) State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Case References:	BGC Construction Pty Ltd v Citygate Properties Pty Ltd [2016] WASC 88 Blackadder Scaffolding Services (Aust) Pty Ltd and Mirvac Homes (WA) Pty Ltd [2009] WASAT 133 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20 Curlewis and City of Albany [2011] WASAT 85 Delmere Holdings Pty Ltd v Green [2015] WASC 148 DPD Pty Ltd v McHenry [2012] WASC 140 Eccles v Koolan Iron Ore Pty Ltd [No 3] [2013] WASC 418 Georgiou Group Pty Ltd and MCC Mining (Western Australia) Pty Ltd [2011] WASAT 120 K & J Burns Electrical Pty Ltd v GRD Group (NT) Pty Ltd [2011] NTCA 1; (2011) 29 NTLR 1 Kellogg Brown & Root Pty Ltd v Doric Contractors Pty Ltd [2014] WASC 206 Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237 Match Projects Pty Ltd and Arccon (WA) Pty Ltd [2009] WASAT 134
Orders	1. The application is dismissed.
Summary	The Tribunal found that in circumstances where notice by a decisionmaker of the right to review in compliance with s 20(1) of the State Administrative Tribunal Act 2004 (WA) has not been given, r 9 of the State Administrative Tribunal Rules 2004 (WA) does not apply and the time limit does not start to run until notice is given in compliance with s 20(1) of the State Administrative Tribunal Act 2004.,The Tribunal found that the use of the description of the respondent as 'the trustee' rather than use of its actual name did comply with the requirements of reg 4 of the Construction Contracts Regulations

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: [2017] WASAT 15
Decision Date: 17 JANUARY 2017

CaseChat Overview and Summary

The applicants, BOCOL Constructions Pty Ltd and Keslake Group Pty Ltd, sought an extension of time to appeal to the Supreme Court against a decision of the State Administrative Tribunal. The tribunal had ruled on matters pertaining to the State Administrative Tribunal Act 2004 (WA), specifically addressing whether the applicants needed an extension of time to appeal due to a lack of notice regarding their rights to apply for a review. Additionally, the tribunal had considered whether the description of the respondent in the application for adjudication complied with the Construction Contracts Act 2004 (WA) and Regulations, as well as whether a claim for damages for breach of an implied term of the contract constituted a 'payment claim' under the contract.

The court was required to determine whether the applicants' failure to provide notice of their rights to apply for a review warranted an extension of time to appeal. Further, the tribunal had to ascertain whether the description of the respondent as 'Trustee for' rather than using the trustee's correct name in the application for adjudication complied with the Act and Regulations. Finally, the tribunal needed to decide whether a claim for damages for breach of an implied term of the contract was a 'payment claim' under the contract.

The court found that the applicants' failure to provide notice of their rights to apply for a review did not warrant an extension of time to appeal. It was determined that the description of the respondent as 'Trustee for' rather than using the trustee's correct name in the application for adjudication did not comply with the Act and Regulations. Moreover, the court held that a claim for damages for breach of an implied term of the contract was not a 'payment claim' under the contract. Consequently, the application for an extension of time was dismissed.

Orders

Orders of the court

Application dismissed

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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