Branlin Pty Ltd v Totaro

Branlin Pty Ltd sought to enforce a payment claim against Totaro, the owner of a property. The dispute arose under the Building and Construction Industry Security of Payment Act 2002 (Vic). The primary issue before the court was whether the construction contract contained a method for resolving disputes, which would exempt the adjudication process from certain statutory requirements. Other legal issues included whether the payment claim was invalid due to the incorrect inclusion of non-claimable variations and the claimant's failure to serve the claim within the time and in accordance with the construction contract and the Act. Additionally, the court needed to determine whether the construction contract provided a mechanism for determining the reference date for a final payment claim and when the works achieved practical completion. The court also considered whether the claimant was required to serve a further notice before withdrawing the first adjudication application and making a fresh application under the Act, and whether the adjudicator breached the rules of natural justice by failing to take into account the respondent's submissions.

The court found that the construction contract did not contain a method for resolving disputes within the meaning of s 10A(3)(d)(ii) of the Act. Consequently, the adjudication process was not exempt from the statutory requirements. The court held that the payment claim was invalid because it incorrectly included non-claimable variations and was not served within the time or in accordance with the construction contract and s 14(5) of the Act. However, the court did not find that the construction contract provided a mechanism for determining the reference date for a final payment claim and when the works achieved practical completion. The court held that the claimant was not required to serve a further notice before withdrawing the first adjudication application and making a fresh application under the Act. The court also held that the adjudicator did not breach the rules of natural justice by failing to take into account the respondent's submissions. Finally, the court held that s 21(2A) of the Act did not apply in this case.

The court dismissed the application for judicial review and ordered that the claimant pay the respondent's costs of the application.