Castle Constructions Pty Ltd v Ghossayn Group Pty Ltd - [2017] NSWSC 1317

Supreme Court

New South Wales

Medium Neutral Citation: Castle Constructions Pty Ltd v Ghossayn Group Pty Ltd [2017] NSWSC 1317
Hearing dates: 18-19 September 2017
Decision date: 29 September 2017
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision:
Adjudicator’s determination to be quashed

Catchwords: BUILDING AND CONSTRUCTION – challenge to jurisdiction of adjudicator to make determination under the Building and Construction Industry Security of Payment Act 1999 – whether there was an available reference date to support the payment claim the subject of the determination – whether defendant was a head contractor as defined in the Act and thus obliged to cause its payment claim to be accompanied by a supporting statement – whether adjudicator’s acceptance was served on plaintiff when deposited into its letterbox by a neighbour into whose letterbox Australia Post had wrongly deposited the adjudicator’s acceptance
Legislation Cited: Building and Construction Industry Payments Act 2004 (QLD)
Building and Construction Industry Security of Payment Act 1999 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 801
Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259
Hutchinson Pty Ltd v Glavcom Pty Ltd [2016] NSWSC 126
Kitchen Xchange Pty Ltd v Formacon Building Services Pty Ltd [2014] NSWSC 1602
Kyle Bay Removals Pty Ltd v Dynabuild Project Services Pty Ltd [2016] NSWSC 334
Lean Field Developments Pty Ltd v E & I Global Solutions (Aust) Pty Ltd [2014] QSC 293
Millman v Rochester Ry Co 3 App Div 109; 39 NYS 274 (1896)
Mt Lewis Estate Pty Ltd v Metricon Homes Pty Ltd [2017] NSWSC 1121
Patrick Stevedores Operations No. 2 Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2014] NSWSC 1413
Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd [2016] HCA 52
Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2008] NSWSC 399
Category: Principal judgment
Parties: Castle Constructions Pty Ltd (First Plaintiff)
Castlenorth Pty Ltd (Second Plaintiff)
Ghossayn Group Pty Ltd (First Defendant)
Michael Turner (Second Defendant)
Adjudicate Today Pty Ltd (Third Defendant)
Representation:
Counsel:
F P Hicks with A J Carr (Plaintiffs)
M Christie SC with D Hume (First Defendant)
Solicitors:
McLachlan Thorpe Partners (Plaintiffs)
CCS Legal Pty Limited (First Defendant)
King Lawyers Australia (Second and Third Defendants)

File Number(s): SC 2016/386129

Judgment

On 16 December 2016, an adjudicator appointed under s 19 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the “SoP Act”) made a determination pursuant to s 22 of that Act that the first plaintiff, Castle Constructions Pty Ltd, pay the first defendant, Ghossayn Group Pty Ltd, $134,107.22.
The adjudicator’s determination was in respect of a payment claim made by Ghossayn Group on Castle Constructions (pursuant to s 13 of the SoP Act) on 30 September 2016.
Castle Constructions and its…

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.

Keep reading for free

Create a free CaseChat account to read Castle Constructions Pty Ltd v Ghossayn Group Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWSC 1317
Decision Date: 29 September 2017

CaseChat Overview and Summary

The case of Castle Constructions Pty Ltd v Ghossayn Group Pty Ltd involved a dispute between Castle Constructions and Ghossayn Group, primarily concerning the enforceability of an adjudicator's determination under the Building and Construction Industry Security of Payment Act 1999. Castle Constructions challenged the jurisdiction of the adjudicator to make the determination, questioning whether there was an available reference date to support the payment claim. Additionally, they disputed whether Ghossayn Group was a head contractor as defined in the Act, which would necessitate the submission of a supporting statement with the payment claim. The case was heard and determined by the Supreme Court of New South Wales.

The legal issues the court had to address included the interpretation of the statutory framework for adjudication, specifically the definition of "reference date" under the Act and the obligations of a "head contractor." Additionally, the court considered whether the adjudicator's acceptance was properly served on Castle Constructions. The dispute over the service of the adjudicator's acceptance was particularly contentious, with Castle Constructions arguing that the adjudicator's acceptance was not validly served because it was mistakenly delivered to a neighbour's letterbox by Australia Post.

The court found that there was indeed an available reference date to support the payment claim, thereby upholding the adjudicator's jurisdiction. It was also determined that Ghossayn Group was a head contractor and was therefore required to provide a supporting statement with the payment claim. Regarding the service of the adjudicator's acceptance, the court ruled that the deposit of the acceptance into Castle Constructions' letterbox by a neighbour constituted valid service, as it was a reasonable action under the circumstances. This ruling affirmed the enforceability of the adjudicator's determination.

The court ordered that the adjudicator's determination was binding, and Castle Constructions was required to make the payment as determined. The court also directed that Ghossayn Group was to provide the supporting statement as required by the Act.

Orders