Cardinal Project Services Pty Ltd v Hanave Pty Ltd - [2010] NSWSC 1367

CITATION: Cardinal Project Services v Hanave [2010] NSWSC 1367

HEARING DATE(S): 22 November 2010 and 23 November 2010

JURISDICTION: Equity Division

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 23 November 2010

DECISION: Determination declared void and quashed. Summons otherwise dismissed with costs.

CATCHWORDS: BUILDING AND ENGINEERING CONTRACTS – adjudication – determinations – validity – where prior adjudication made on same payment claim – where prior determination declared void – whether plaintiff could make second adjudication application – whether second application made within time allowed by s 26(3) – whether second determination void – judicial review – Building and Construction Industry Security of Payment Act 1999 (NSW) s 26. - STATUTORY INTERPRETATION – meaning of s 26(1)(b) and s 26(3) – giving effect to literal meaning – when time limit for making fresh application runs – considerations of inconvenient consequences – Building and Construction Industry Security of Payment Act 1999 (NSW) s 26.

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

CATEGORY: Procedural and other rulings

CASES CITED: Brodyn Pty Limited v Davenport (2004) 61 NSWLR 421
Chase Oyster Bar v Hamo Industries [2010] NSWCA 190
Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69
Multiplex Constructions Pty Limited v Luikens [2003] NSWSC 1140
Watpac Constructions v Austin Corp [2010] NSWSC 168

PARTIES: Cardinal Project Services Pty Ltd (Plaintiff)
Hanave Pty Limited (First Defendant)
David Campbell-Williams (Second Defendant)

FILE NUMBER(S): SC 2010/304657

COUNSEL: HJA Neal (Plaintiff)
G J McVay (First Defendant)

SOLICITORS: Baron + Associates (Plaintiff)
Gilbert Mane Solicitors (First Defendant)

- 17 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

23 November 2010 (ex tempore – revised 24 November 2010)

2010/304657 CARDINAL PROJECT SERVICES PTY LIMITED v HANAVE PTY LIMITED

JUDGMENT

1 HIS HONOUR: On 21 April 2008, the first defendant (Hanave) and the plaintiff (Cardinal) made a "minor works contract" under which Cardinal undertook to perform excavation and shoring works for Hanave at a site in Surry Hills. There is no doubt that the work to be performed by Cardinal was, or included, construction work for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) and, hence, that the contract was a construction contract.

2 The ultimate question for decision is the validity of a determination made by the second defendant (the second adjudicator) on 3 September 2010, which was corrected under s 22(5) of the Act on 8 September 2010 (the second determination). That was the second determination (or purported determination) on the same payment claim.

The issues

3 The real issues in dispute appear to be the following:

(1) in circumstances where there had been a prior adjudication on the same payment claim, and where the resulting determination (the first determination) had been declared to be void, was it open to Cardinal to make the adjudication application (the second application) that was the subject of the second…

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: [2010] NSWSC 1367
Decision Date: 23 November 2010

CaseChat Overview and Summary

In Cardinal Project Services Pty Ltd v Hanave Pty Ltd, the parties were engaged in a dispute concerning an adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW). The plaintiff, Cardinal Project Services, sought to enforce an adjudicator's determination in relation to a payment claim. The defendant, Hanave Pty Ltd, contested the validity of the adjudicator's determination and sought judicial review of the decision to allow the second adjudication application. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether the plaintiff was permitted to make a second adjudication application after a prior determination was declared void, whether the second application was made within the time allowed by section 26(3) of the Act, and whether the second determination was void. The court was also required to interpret sections 26(1)(b) and 26(3) of the Act, particularly in relation to the meaning of the time limit for making a fresh application and whether considerations of inconvenient consequences could override the literal meaning of the provisions.

The court held that the plaintiff was not permitted to make a second adjudication application as the time limit under section 26(3) of the Act had already expired. The court emphasised the importance of giving effect to the literal meaning of the statutory provisions, and that considerations of inconvenient consequences could not override the clear wording of the Act. The court also found that the second determination was void as it was made outside the time limit. The application for judicial review was dismissed, and the plaintiff's claim for enforcement of the adjudicator's determination was also dismissed.

The final orders of the court included dismissing the application for judicial review, declaring that the second adjudication application was invalid, and that the second determination was void. The court also dismissed the plaintiff's claim for enforcement of the adjudicator's determination.

Orders