Canberra Drilling Rigs Pty Ltd v Haides Pty Ltd - [2019] ACTCA 15

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Canberra Drilling Rigs Pty Ltd v Haides Pty Ltd
Citation:	[2019] ACTCA 15
Hearing Date:	10 May 2019
DecisionDate:	28 May 2019
Before:	Murrell CJ, Mossop and Loukas-Karlsson JJ
Decision:	The appeal is dismissed with costs
Catchwords:	APPEAL – BUILDING AND CONSTRUCTION – Adjudication of progress payment claim under Building and Construction Industry (Security of Payment) Act2009 (ACT) – whether payment claim served within period required by s 15(4)(b) – some work within 12 month period, some outside – whether fact that work within 12 month period was work done under relevant construction contract was a jurisdictional fact or whether claim that the work had been done under the construction contract sufficient to enliven adjudicator’s jurisdiction – whether primary judge erred in not determining the terms of a construction contract – operation of s 15(4) of the Building and Construction Industry (Security of Payment) Act 2009 (ACT)
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 13(5), 17(2)(a) Building and Construction Industry (Security of Payment) Act 2009 (ACT), ss 10, 10(1), 11, 12, 15, 15(1), 15(4), 15(4)(a), 15(4)(b), 15(5), 16, 19(2), 24, 38, 43, Pt 3, Pt 4
Cases Cited:	Ampcontrol SWG Pty Ltd v Gujarat NRE Wonga Pty Ltd [2013] NSWSC 707 Brodyn Pty Ltd v Davenport [2004] NSWCA 394; 61 NSWLR 421 Canberra Drilling Rigs Pty Ltd v Haides Pty Ltd [2018] ACTSC 282 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; 78 NSWLR 393 Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 801 Estate Property Holdings Pty Ltd v Barclay Mowlem Construction Ltd [2004] NSWCA 393; 61 NSWLR 575 Lifestyle Retirement Projects No 2 Pty Ltd v Parisi Homes Pty Ltd [2005] NSWSC 705 Pines Living Pty Ltd v John O’Brien & Walton Construction Pty Ltd [2013] ACTSC 156 Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151; 95 NSWLR 82 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Southern Han Breakfast Point Pty Ltd (In liq) v Lewence Construction Pty Ltd [2016] HCA 52; 260 CLR 340 The Trustees of the Roman Catholic Church for the Diocese of Lismore v T F Woollam and Son [2012] NSWSC 1559 Winyu Pty Ltd v King [2015] ACTSC 387
Parties:	Canberra Drilling Rigs Pty Ltd (Appellant) Haides Pty Ltd (First Respondent) Max Tonkin (Second Respondent)
Representation:	Counsel D Weinberger (Appellant) B Katekar and D Robens (First Respondent) No appearance (Second Respondent)
Solicitors Chamberlains Law Firm (Appellant) WMG Legal (First Respondent) Adjudicate Today (Second Respondent)
File Number:	ACTCA 63 of 2018
Decision under appeal:	Court/Tribunal: Supreme Court of the ACT Before: McWilliam AsJ Date of Decision: 12 October 2018 Case Title: Canberra Drilling Rigs Pty Ltd v Haides Pty Ltd Citation: [2018] ACTSC 282

THE COURT:

Introduction

The appellant (Canberra Drilling) was engaged by Core Building Group…

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: [2019] ACTCA 15
Decision Date: 28 May 2019

CaseChat Overview and Summary

Canberra Drilling Rigs Pty Ltd (the appellant) appealed to the Supreme Court of the Australian Capital Territory against a decision of the primary judge concerning an adjudication of a progress payment claim made under the *Building and Construction Industry (Security of Payment) Act 2009* (ACT). The dispute arose from a payment claim made by Haides Pty Ltd (the respondent) for work performed under a construction contract. The core of the dispute revolved around whether the payment claim was served within the time limits prescribed by section 15(4)(b) of the Act, specifically concerning work performed both within and outside a 12-month period.

The central legal issues before the Court were whether the fact that work was done within the 12-month period was a jurisdictional fact that needed to be established for the adjudicator to have jurisdiction, or if the claimant's assertion that the work was done under the construction contract was sufficient to enliven the adjudicator's jurisdiction. The Court was also required to consider whether the primary judge erred in not determining the specific terms of the construction contract and the proper operation of section 15(4) of the Act in this context.

The Court of Appeal dismissed the appeal, upholding the primary judge's decision. The reasoning focused on the interpretation of section 15(4) of the Act, which dictates the timeframe for making a payment claim. The Court affirmed that the claimant's assertion that the work was performed under the construction contract was sufficient to establish the adjudicator's jurisdiction, and it was not a jurisdictional fact that required definitive proof at that stage. The Court found that the primary judge had correctly applied the principles of the Act and did not err in their determination. The appeal was dismissed with costs.

Orders

Orders of the court

The appeal is dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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