Brambles Australia Limited v Philip Davenport - [2004] NSWSC 120

CITATION: Brambles Australia Limited v Philip Davenport & Ors [2004] NSWSC 120

HEARING DATE(S): 01/03/04

JUDGMENT DATE:
12 March 2004

JURISDICTION:
Equity Division
Technology and Construction List

JUDGMENT OF: Einstein J

DECISION: Proceedings to be dismissed.

CATCHWORDS: Building and construction - progress payments claimed under the Building and Construction Industry Security of Payment Act 1999 (NSW) - determination made by adjudicator - Administrative law - whether, and if so to what extent, judicial review of adjudications made pursuant to the Act is available - scope of relief available in the nature of a writ of certiorari - grounds upon which judicial review is available - Natural justice in relation to costs - Proper construction of section 7(2)(c) of the Act - Whether the consideration payable for construction work carried out under the contract or for related goods and services supplied under the contract was to be calculated by reference to the value of the work carried out or the value of the goods and services supplied

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)
Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW)
Magistrates (Summary Proceedings) Act 1975 (Vic)
Supreme Court Act 1970 (NSW)

CASES CITED: Abacus Funds Management Ltd v Davenport [2003] NSWSC 935
ADI Limited v Environmental Protection Authority; Environmental Protection Authority v ADI Limited (2000) 118 ACrimR 335
Brodyn Pty Limited t/as Time Cost and Quality (ACN 001 998 830) v Philip Davenport & Ors [2003] NSWSC 1019
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635
Dowling v Bowie (1952) 86 CLR 136
Emag Constructions Pty Limited v Highrise Concrete Contractors (Aust) Pty Limited [2003] NSWSC 903
Kioa v West (1985) 159 CLR 550
Leighton Contractors Pty Limited v Campbelltown Catholic Club Limited, Campbelltown Catholic Club Limited v Leighton Contractors Pty Limited [2003] NSWSC 1103
Monier Ltd (t/as Reliance Roof Tiles) v Szabo (1992) 28 NSWLR 53
Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140
Musico & Ors v Davenport & Ors [2003] NSWSC 977
Paynter Dixon Constructions Pty Limited v JF & CG Tilston Pty Limited [2003] NSWSC 869
R v Maclay (1990) 19 NSWLR 112
Re Bolton ex parte Bean (1987) 162 CLR 514
Reg v Edwards [1975] QB 27
Reg v Hunt [1987] AC 352
Rose and Another v Bridges (1997) 79 FCR 378
Roxborough & Ors v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516
Russell v Duke of Norfolk [1949] 1 All ER 109
Transgrid v Walter Construction Group Ltd [2004] NSWSC 21
Vines v Djordjevitch (1955) 91 CLR 512
Walter Construction Group Ltd v CPL (Surry Hills) Pty Ltd [2003] NSWSC 266

PARTIES :
Brambles Australia Limited (Plaintiff)
Philip Davenport (First Defendant)
Demtech Pty Ltd (Second Defendant)
Adjudicate Today (Third Defendant)

FILE NUMBER(S): SC 55061/03

COUNSEL: Mr G Inatey SC, Mr D Miller (Plaintiff)
Mr M Rudge SC, Mr D Robertson (Second Defendant)
No appearance First and Third Defendants

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: [2004] NSWSC 120
Decision Date: 12 March 2004

CaseChat Overview and Summary

Brambles Australia Limited sought a review of a decision made by an adjudicator under the Building and Construction Industry Security of Payment Act 1999 (NSW) in relation to a progress payment claim made by Philip Davenport. The dispute was heard by the Supreme Court of New South Wales. The court was required to decide whether and to what extent judicial review of adjudications made under the Act was available, the scope of relief available in the nature of a writ of certiorari, the grounds upon which judicial review was available, the proper construction of section 7(2)(c) of the Act, and whether the consideration payable for construction work carried out under the contract or for related goods and services supplied under the contract was to be calculated by reference to the value of the work carried out or the value of the goods and services supplied.

The court found that judicial review of adjudications made under the Act was limited and only available on certain grounds, such as errors of law or jurisdictional errors. The court held that the scope of relief available in the nature of a writ of certiorari was limited to setting aside the adjudicator's decision and remitting the matter back to the adjudicator for reconsideration. The court also held that natural justice in relation to costs was not a ground for judicial review under the Act. The court found that section 7(2)(c) of the Act required the consideration payable for construction work carried out under the contract or for related goods and services supplied under the contract to be calculated by reference to the value of the work carried out or the value of the goods and services supplied.

The court ordered that the adjudicator's decision be set aside and the matter be remitted back to the adjudicator for reconsideration in accordance with the court's findings.

Orders