BOCOL CONSTRUCTIONS PTY LTD and KESLAKE GROUP PTY LTD

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



STATE ADMINISTRATIVE TRIBUNALCitation No:[2017] WASAT 15
CONSTRUCTION CONTRACTS ACT 2004 (WA)
Case No:CC:1079/201629 SEPTEMBER 2016
Coram:MS P LE MIERE (MEMBER)17/01/17
30Judgment Part:1 of 1
Result: Application dismissed
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
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Details
Case
[2017] WASAT 15
Decision Date

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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