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Brolton Group Pty Ltd v Hanson Construction Materials Pty Ltd

Brolton Group Pty Ltd v Hanson Construction Materials Pty Ltd

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Case Copied 17 April 2020 38 min read

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Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Brolton Group Pty Ltd v Hanson Construction Materials Pty Ltd [2020] NSWCA 63
Hearing dates: 20 March 2020
Date of orders: 17 April 2020
Decision date: 17 April 2020
Before: Meagher JA at [1]
Gleeson JA at [2]
Payne JA at [73]
Decision:
(1) Appeal dismissed.
(2) Appellant pay the respondents’ costs of the appeal.
Catchwords: BUILDING & CONSTRUCTION – appeals – payment claim referred for adjudication – where available reference date under construction contract – Building and Construction Industry Security of Payment Act 1999 (NSW) – where adjudicator determined entitlement to payment claim by reference to an unavailable reference date – jurisdictional error – where available reference date under contract not the reference date addressed by the adjudicator – whether adjudication determination also involved a denial of natural justice
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 9, 10, 13, 14, 17, 20, 22
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Barclay Mowlem Construction Ltd v Estate Property Holdings Pty Ltd [2004] NSWSC 649
Brodyn Pty Ltd (T/as Time Cost and Quality) v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
Houssain v Minister for Immigration & Border Protection (2018) 264 CLR 123; [2018] HCA 34
Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339
Leighton Contractors Pty Ltd v Campbelltown Catholic Club Ltd [2003] NSWSC 1103
Metwally v University of Wollongong (1985) 59 ALJR 481
Paynter Dixon Constructions Pty Ltd v JF & CG Tilston Pty Ltd [2003] NSWSC 869
Pinnacle Construction Pty Ltd v Dimension Joinery Pty Ltd [2018] NSWSC 894
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4
Quasar Constructions NSW Pty Ltd v Demtech Pty Ltd [2004] NSWSC 116; (2004) 20 BCL 276
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
The Trustee for Allway Unit Trust (t-as Westside Mechanical Contracting Pty Ltd) v R & D Airconditioning Pty Ltd [2018] SASC 46
Walter Construction Group Pty Ltd v CPL (Surry Hills) Pty Ltd [2003] NSWSC 266
Watpac Constructions v Austin Corp [2010] NSWSC 168
Category: Principal judgment
Parties: Brolton Group Pty Ltd (Appellant)
Hanson Construction Materials Pty Ltd (First respondent)
Edward Smithies (Second respondent)
Representation:
Counsel:
G Sirtes SC / D Byrne (Appellant)
N J Kidd SC / B Le Plastrier (Respondents)
Solicitors:
HWL Ebsworth Lawyers (Appellant)
King & Wood Mallesons (First respondent)
Edward Smithies (Second respondent)

File Number(s): 2019/396338
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2019] NSWSC 1641

Date of Decision:

26 November 2019

Before:

Ball J

File Number(s):

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: [2020] NSWCA 63
Decision Date: 17 April 2020

CaseChat Overview and Summary

Brolton Group Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning an adjudication determination made under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The dispute arose from a payment claim made by Brolton Group, which Hanson Construction Materials Pty Ltd had referred for adjudication. The core of the appeal concerned whether the adjudicator had made a jurisdictional error by referencing an unavailable reference date under the construction contract when determining Brolton Group's entitlement to payment.

The Court of Appeal was required to determine two primary legal issues. First, whether the adjudicator had committed a jurisdictional error by failing to consider the correct reference date stipulated by the construction contract, instead purporting to act by reference to an unavailable reference date. Second, the Court considered whether this alleged error, if established, also constituted a denial of natural justice to Brolton Group.

The Court of Appeal dismissed the appeal, finding that the adjudicator had not made a jurisdictional error. Their Honours reasoned that the adjudicator had correctly identified the relevant reference date under the contract and had not based their determination on an unavailable reference date as alleged by Brolton Group. Consequently, the Court concluded that there was no denial of natural justice.

Accordingly, the appeal was dismissed, and Brolton Group Pty Ltd was ordered to pay the respondents’ costs of the appeal.

Orders

Orders of the court

(1) Appeal dismissed.

(2) Appellant pay the respondents’ costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Brolton Group Pty Ltd v Hanson Construction Materials Pty Ltd [2020] NSWCA 63
Hearing dates:	20 March 2020
Date of orders:	17 April 2020
Decision date:	17 April 2020
Before:	Meagher JA at [1] Gleeson JA at [2] Payne JA at [73]
Decision:	(1) Appeal dismissed. (2) Appellant pay the respondents’ costs of the appeal.
Catchwords:	BUILDING & CONSTRUCTION – appeals – payment claim referred for adjudication – where available reference date under construction contract – Building and Construction Industry Security of Payment Act 1999 (NSW) – where adjudicator determined entitlement to payment claim by reference to an unavailable reference date – jurisdictional error – where available reference date under contract not the reference date addressed by the adjudicator – whether adjudication determination also involved a denial of natural justice
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 9, 10, 13, 14, 17, 20, 22 Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	Barclay Mowlem Construction Ltd v Estate Property Holdings Pty Ltd [2004] NSWSC 649 Brodyn Pty Ltd (T/as Time Cost and Quality) v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 Houssain v Minister for Immigration & Border Protection (2018) 264 CLR 123; [2018] HCA 34 Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339 Leighton Contractors Pty Ltd v Campbelltown Catholic Club Ltd [2003] NSWSC 1103 Metwally v University of Wollongong (1985) 59 ALJR 481 Paynter Dixon Constructions Pty Ltd v JF & CG Tilston Pty Ltd [2003] NSWSC 869 Pinnacle Construction Pty Ltd v Dimension Joinery Pty Ltd [2018] NSWSC 894 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 Quasar Constructions NSW Pty Ltd v Demtech Pty Ltd [2004] NSWSC 116; (2004) 20 BCL 276 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 The Trustee for Allway Unit Trust (t-as Westside Mechanical Contracting Pty Ltd) v R & D Airconditioning Pty Ltd [2018] SASC 46 Walter Construction Group Pty Ltd v CPL (Surry Hills) Pty Ltd [2003] NSWSC 266 Watpac Constructions v Austin Corp [2010] NSWSC 168
Category:	Principal judgment
Parties:	Brolton Group Pty Ltd (Appellant) Hanson Construction Materials Pty Ltd (First respondent) Edward Smithies (Second respondent)
Representation:	Counsel: G Sirtes SC / D Byrne (Appellant) N J Kidd SC / B Le Plastrier (Respondents) Solicitors: HWL Ebsworth Lawyers (Appellant) King & Wood Mallesons (First respondent) Edward Smithies (Second respondent)
File Number(s):	2019/396338
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2019] NSWSC 1641 Date of Decision: 26 November 2019 Before: Ball J File Number(s):