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Brodyn Pty Ltd v Davenport

Brodyn Pty Ltd v Davenport

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CITATION: Brodyn Pty Limited t/as Time Cost and Quality (ACN 001 998 830) v Philip Davenport & Ors [2003] NSWSC 1019

HEARING DATE(S): 27/10/03

JUDGMENT DATE:
6 November 2003

JURISDICTION:
Common Law Division
Administrative Law 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 - determination made by adjudicator - Administrative law - whether, and if so to what extent, judicial review of adjudications made pursuant to the Building and Construction Industry Security of Payment Act 1999 is available - scope of relief available in the nature of a writ of certiorari - grounds upon which judicial review is available

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)
Home Building Act, 1989 (NSW)
Supreme Court Act 1970 (NSW)

CASES CITED: Abacus Funds Management Ltd v Davenport [2003] NSWSC 935
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168
Emag Constructions Pty Limited v Highrise Concrete Contractors (Aust) Pty Limited [2003] NSWSC 903
Musico v Davenport [2003] NSWSC 977
Paynter Dixon Constructions Pty Limited v JF & CG Tilston Pty Limited [2003] NSWSC 869
Plaintiff S157/2002 v Commonwealth (2003) 77 ALJR 454
Public Service Board of NSW v Osmond (1986) 159 CLR 656
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338
R v Tennant; Ex parte Woods [1962] Qd R 241
Walter Construction Group Limited v CPL (Surry Hills) Pty Ltd [2003] NSWSC 266
Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32

PARTIES :
Brodyn Pty Limited t/as Time Cost and Quality (ACN 001 998 830) (Plaintiff)
Philip Davenport (First Defendant)
Mediate Today Pty Limited (Second Defendant)
Linisil Australia Pty Ltd. (Third Defendant)

FILE NUMBER(S): SC 30078/03

COUNSEL: Mr T Davie (Plaintiff)
Mr F Hicks (Third Defendant)

SOLICITORS: Schrader & Associates (Plaintiff)
LAC Lawyers (Third Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Einstein J

6 November 2003

30078/03 Brodyn Pty Limited t/as Time Cost and Quality (ACN 001 998 830) v Philip Davenport & Ors

JUDGMENT

The Proceedings

1 The plaintiff, Brodyn Pty Ltd, seeks relief under section 69 of the Supreme Court Act 1970 (NSW) in the nature of certiorari quashing an adjudication determination made by the first defendant pursuant to the provisions of the Building and Construction Industry Security of Payment Act 1999 (NSW) ["the Act"]. Further, claims to injunctive relief are sought including:

“2. An order that the Third Defendant, its servants or agents, be restrained from requesting the Second Defendant, being the authorised nominating authority within the meaning of those words contained in s 24 of the Building and Construction Industry Security of Payment Act 1999 (the Act), to provide an adjudication certificate under s 24 of the Act;

3. An order that the Third Defendant, its servants or agents, be restrained from providing the…

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: [2003] NSWSC 1019
Decision Date: 6 November 2003

CaseChat Overview and Summary

Brodyn Pty Ltd sought to recover unpaid progress payments from Davenport. The dispute arose under the Building and Construction Industry Security of Payment Act 1999, which provides mechanisms for the resolution of disputes over progress claims in the building and construction industry. Brodyn initiated adjudication proceedings against Davenport, and the adjudicator made a determination in Brodyn's favour. Davenport subsequently sought to challenge the adjudicator's decision, claiming it was flawed and that judicial review was warranted. The court was required to determine the extent to which adjudications under the Act are subject to judicial review and, if so, the scope of relief available.

The court first examined the statutory framework and the principles of administrative law to understand the context in which the adjudication took place. It considered whether the adjudication was a decision that was subject to judicial review and, if so, the grounds upon which such review could be sought. The court emphasised that while adjudications under the Act are intended to be a quick and inexpensive process, they are not entirely immune from judicial scrutiny. The court found that judicial review is available to a limited extent, primarily to address jurisdictional errors or errors of law on the face of the record. The scope of relief available in the nature of a writ of certiorari was also considered, with the court concluding that the remedy is narrow and limited to correcting errors in the decision-making process.

The court held that the adjudicator's determination was subject to judicial review, but only to a limited extent. It found that the adjudicator had indeed made an error of law, which was apparent on the face of the record. The court granted certiorari to set aside the adjudicator's determination and remitted the matter back to the adjudicator for reconsideration. The court emphasised that the scope of review was confined to correcting errors of law and did not extend to re-evaluating the merits of the decision. The court also noted that the parties were free to pursue further adjudication or other dispute resolution processes in light of the court's decision.

Orders