Branlin Pty Ltd v Totaro - [2014] VSC 492

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW AND EQUITY DIVISION
TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST

S CI 2014 00726

BRANLIN PTY LTD (ACN 108 591 304)	Plaintiff
v
TONY TOTARO (T/A EZY DOZE IT) (ABN 78 822 145 580)	First Defendant
and
MARIA TOTARO T/A EZY DOZE IT) (ABN 78 822 145 580)	Second Defendant
and
NAVID KING	Third Defendant
and
ADJUDICATE TODAY PTY LTD (ABN 39 109 605 021)	Fourth Defendant

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 AUGUST 2014
DATE OF JUDGMENT:	7 OCTOBER 2014
CASE MAY BE CITED AS:	BRANLIN PTY LTD v TOTARO
MEDIUM NEUTRAL CITATION:	[2014] VSC 492

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BUILDING CONTRACTS - Building and Construction Industry Security of Payment Act 2002 (Vic) – Whether incorrect inclusion of non-claimable variations - Whether the construction contract contained a method for resolving disputes within the meaning of s 10A(3)(d)(ii) of the Act – Whether payment claim invalid because not served within time or in accordance with the construction contract and s 14(5) of the Act – Whether the construction contract provided a mechanism for determining the reference date for a final payment claim and when the works achieved practical completion - Whether the claimant was required to serve a further s 18(2) notice before withdrawing the first Adjudication Application and making a fresh application under s 28 of the Act – Whether breach of the rules of natural justice - Whether the adjudicator was required to take into account the respondent’s submissions – Application of s 21(2A) of the Act.
ADMINISTRATIVE LAW – Judicial review - Decision of adjudicator appointed under the Building and Construction Industry Security of Payment Act 2002 (Vic) – Whether certiorari should be granted to quash the decision.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N A Andreou	Hutchinson Legal
For the First and Second Defendants	Mr A R Morrison	Rigby Cooke
For the Third and Fourth Defendants	No Appearance

HIS HONOUR:

This proceeding arises out of a payment claim purportedly made under the Building and Construction Industry Security of Payment Act 2002 (the ‘Act’).

On 4 October 2013 a construction contract (the ‘Construction Contract’) was entered into between the Plaintiff, Branlin Pty Ltd (‘Branlin’) (which was the Respondent under the relevant Payment Claim) and the First Defendant, Tony Totaro trading as Ezy Doze It (‘Mr Totaro’) (who was the Claimant under the relevant Payment Claim). Pursuant to the Construction Contract Branlin engaged Mr Totaro to perform preliminary site works, earthworks, water infrastructure works and concrete road pavement (the ‘Works’) at a 9 lot development site located on Broadgully Road and Glen View Close, Diamond Creek, Victoria (the ‘Project’). The contract price for the work, excluding GST, was $235,000.

The Works commenced on 9 October 2012.

Mr Totaro purported to serve a payment claim under the Act dated 7 November 2013 (the ‘Payment Claim’) upon Branlin. The Payment Claim claimed the sum of $124,240.93 (including GST) under the Act.

Branlin did not pay any…

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.

Continue reading Branlin Pty Ltd v Totaro

Details

AGLC: Branlin Pty Ltd v Totaro [2014] VSC 492
Case: [2014] VSC 492
Decision Date: 7 OCTOBER 2014

CaseChat Overview and Summary

Branlin Pty Ltd filed a claim against Totaro for an adjudication under the Building and Construction Industry Security of Payment Act 2002 (Vic) regarding a building contract dispute. The court was required to determine several legal issues, including whether the payment claim was invalid due to incorrect inclusion of non-claimable variations, the presence of a method for resolving disputes within the contract, the validity of the payment claim concerning the timing and method of service, and whether the contract provided mechanisms for determining the reference date for a final payment claim and the completion of works. Additionally, the court had to decide if Branlin was required to serve another notice before withdrawing its first adjudication application and filing a new one, and whether the adjudicator's process breached natural justice or failed to consider the respondent's submissions. Finally, the court needed to assess whether the adjudicator's decision should be quashed on the grounds of judicial review.

The court found that Branlin's payment claim was invalid due to the inclusion of non-claimable variations and the absence of a dispute resolution method in the contract. Furthermore, the payment claim was not served in accordance with the contract and the Act, rendering it invalid. The contract did not provide a mechanism for determining the reference date for a final payment claim or the completion of works. Branlin was not required to serve a further notice before withdrawing its first adjudication application and making a new one. The adjudicator's process did not breach natural justice, and there was no requirement for the adjudicator to consider the respondent's submissions. The court concluded that the adjudicator's decision was not subject to quashing on the grounds of judicial review.

The final orders of the court included dismissing Branlin's application for adjudication and affirming Totaro's cross-application for an order quashing the adjudicator's decision. The court also ordered that Totaro recover its costs of the application and cross-application.

Orders