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Cardinal Project Services Pty Ltd v Hanave Pty Ltd

Cardinal Project Services Pty Ltd v Hanave Pty Ltd

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Case Copied 16 December 2011 61 min read

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Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Cardinal Project Services Pty Ltd v Hanave Pty Ltd [2011] NSWCA 399
Hearing dates: 14 November 2011
Decision date: 16 December 2011
Before: Basten JA at [1];
Macfarlan JA at [63];
Tobias AJA at [105]
Decision:
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - whether for the purposes of s 26 an adjudicator who issues only a purported but void determination fails to determine an adjudication application within the time allowed by s 21(3) - whether the five business day time period under s 26 for lodgement of a new adjudication application commences to run from the expiry of the period for issue of a valid determination or from the date that a purported determination is declared void
STATUTORY INTERPRETATION - Building and Construction Industry Security of Payment Act 1999 s 26 - whether for the purposes of s 26 an adjudicator who issues only a void determination fails to determine an adjudication application - effect of an order quashing a decision upon the ground of denial of procedural fairness - Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 referred to
Legislation Cited: Building and Construction Industry Payments Act 2004 (Qld)
Building and Construction Industry Security of Payment Act 1999 (NSW)
Building and Construction Industry Security of Payment Act 2002 (Vic)
Interpretation Act 1987 (NSW)
Migration Act 1958 (Cth)
Supreme Court Act 1970 (NSW)
Workers Compensation Act 1987 (NSW)
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; 129 CLR 99
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364
Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298
Brodyn Pty Ltd v Davenport [2004] NSWCA 394; 61 NSWLR 421
Calvin v Carr [1980] AC 574
Chase Oyster Bar v Hamo Industries [2010] NSWCA 190; 272 ALR 750
Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation (Cth) [1981] HCA 26; 147 CLR 297
Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69; 74 NSWLR 190
Emergency Services Superannuation Board v Davenport [2004] NSWSC 697
Emergency Services Superannuation Board v Sundercombe [2004] NSWSC 405
Federal Commissioner of Taxation v BHP Billiton Ltd [2011] HCA 17; 85 ALJR 638
Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) [2009] VSC 426
John…

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: [2011] NSWCA 399
Decision Date: 16 December 2011

CaseChat Overview and Summary

In the New South Wales Court of Appeal, Cardinal Project Services Pty Ltd (the respondent) sought to recover an amount it claimed was due under a construction contract from Hanave Pty Ltd (the appellant). The dispute concerned the validity of an adjudication determination made under the *Building and Construction Industry Security of Payment Act 1999* (NSW) and the subsequent ability of the respondent to lodge a fresh adjudication application.

The primary legal issues before the Court were whether an adjudicator issuing a determination that was subsequently found to be void had, for the purposes of section 26 of the Act, failed to determine the adjudication application within the time prescribed by section 21(3). Further, the Court had to determine when the five-business-day period for lodging a new adjudication application under section 26 commenced to run: from the expiry of the time allowed for a valid determination, or from the date the purported determination was declared void.

The Court applied principles of statutory interpretation, particularly in relation to section 26 of the Act, and considered the effect of an order quashing a decision on the grounds of procedural unfairness, referencing the High Court's decision in *Minister for Immigration and Multicultural Affairs v Bhardwaj*. The Court reasoned that a void determination does not constitute a determination for the purposes of the Act, meaning the adjudicator had failed to determine the application within the statutory timeframe. Consequently, the time for lodging a new application commenced upon the expiry of the period within which a valid determination should have been made.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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:	Cardinal Project Services Pty Ltd v Hanave Pty Ltd [2011] NSWCA 399
Hearing dates:	14 November 2011
Decision date:	16 December 2011
Before:	Basten JA at [1]; Macfarlan JA at [63]; Tobias AJA at [105]
Decision:	Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - whether for the purposes of s 26 an adjudicator who issues only a purported but void determination fails to determine an adjudication application within the time allowed by s 21(3) - whether the five business day time period under s 26 for lodgement of a new adjudication application commences to run from the expiry of the period for issue of a valid determination or from the date that a purported determination is declared void STATUTORY INTERPRETATION - Building and Construction Industry Security of Payment Act 1999 s 26 - whether for the purposes of s 26 an adjudicator who issues only a void determination fails to determine an adjudication application - effect of an order quashing a decision upon the ground of denial of procedural fairness - Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 referred to
Legislation Cited:	Building and Construction Industry Payments Act 2004 (Qld) Building and Construction Industry Security of Payment Act 1999 (NSW) Building and Construction Industry Security of Payment Act 2002 (Vic) Interpretation Act 1987 (NSW) Migration Act 1958 (Cth) Supreme Court Act 1970 (NSW) Workers Compensation Act 1987 (NSW)
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; 129 CLR 99 Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298 Brodyn Pty Ltd v Davenport [2004] NSWCA 394; 61 NSWLR 421 Calvin v Carr [1980] AC 574 Chase Oyster Bar v Hamo Industries [2010] NSWCA 190; 272 ALR 750 Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation (Cth) [1981] HCA 26; 147 CLR 297 Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69; 74 NSWLR 190 Emergency Services Superannuation Board v Davenport [2004] NSWSC 697 Emergency Services Superannuation Board v Sundercombe [2004] NSWSC 405 Federal Commissioner of Taxation v BHP Billiton Ltd [2011] HCA 17; 85 ALJR 638 Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) [2009] VSC 426 John…