Build It Carpentry and Joinery Pty Ltd v John King

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Build It Carpentry & Joinery Pty Ltd v John King & Anor

Citation:

[2021] ACTMC 1

Hearing Date:

4 September 2020

DecisionDate:

Friday 26 February 2021

Before:

Magistrate Morrison

Decision:

See paragraphs [101] and [102]

Catchwords:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – settlement of contractual disputes – referral of dispute to third party decision-maker – whether dispute notice was valid having regard to matters then in dispute

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – whether court can review third-party determination – whether decision of third party decision-maker was void for legal error – whether a legal error was made – whether determination was made in accordance with the contract

Cases Cited:

Foote & Anor v Barton Property Partnership No 2 [2014] ACTSC 330

Lainson Holdings Pty Ltd v Duffy Kennedy Pty Ltd [2019] NSWSC 576

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104

Parties:

Build It Carpentry & Joinery Pty Ltd (Plaintiff)

John King (First Defendant)

Robyn King (Second Defendant)

Representation:

Counsel

B Buckland (Plaintiff)

R Arthur (Defendants)

Solicitors

Mills Oakley (Plaintiff)

Bradley Allen Love (Defendants)

File Number:

CS 264 of 2018

MAGISTRATE MORRISON:

1. This hearing proceeded on the basis that there is no material dispute between the parties on the facts. A joint tender bundle of some four volumes of documents was received in evidence by consent (Exhibit A).

1. By way of introductory summary:

(a)     The plaintiff is a building company. The plaintiff and the defendants entered into a Master Builders Association Home Building Contract (‘the Contract’) in March 2014.

(b)     Work was carried out by the plaintiff under the terms of the Contract and on the basis of what the plaintiff says were certain agreed variations to the Contract and additional works.

(c)      A dispute arose between the plaintiff and the defendants about the payments required of the defendants under the Contract.

(d)     The plaintiff purported to make a referral of what it said was the dispute to an independent third party decision-maker (‘the TPDM’) under clause 32 of the Contract.

(e)     The defendants maintained at the time (and continued to maintain at hearing) that the referral to the TPDM was invalid, but nonetheless ‘took part in’ the TPDM referral process by providing evidence and making submissions.

(f)       The TPDM determined that an amount of $76,951.50 was payable by the defendants to the plaintiff, and that the defendants were to pay 100% of the TPDM’s fees.

(g)     The defendants have not paid $76,951.50 (nor costs) to the plaintiff.

1. Two arguments are raised by the defendants.

1. The first is that, whilst the defendants accept that a dispute had arisen between the parties about certain variations before the issue of the dispute notice, the defendants say that what was referred to in that notice (and what was subsequently referred to the TPDM for determination) went beyond the matters then in dispute. The defendants say that the referral is invalid as…