Cat Protection Society v Arvio - [2018] VSC 757

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
COMMERCIAL COURT
TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST

Not Restricted

S ECI 2018 0419

THE CAT PROTECTION SOCIETY OF VICTORIA (ACN 004 513 679)	Plaintiff
v
ARVIO PTY LTD (ACN 600 218 380) and JOHN McMULLAN	Defendants

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JUDGE:	DIGBY J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 September 2018
DATE OF JUDGMENT:	10 December 2018
CASE MAY BE CITED AS:	Cat Protection Society v Arvio
MEDIUM NEUTRAL CITATION:	[2018] VSC 757

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ADMINISTRATIVE LAW – Judicial review – Relief in the nature of certiorari – Injunctions – Declarations – Whether Adjudication Determination is vitiated by jurisdictional error – Review of jurisdictional facts – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 56.

BUILDING CONTRACTS – Adjudication Determination – Reference dates – Nature of payment claim – Whether payment claim is ‘final claim’ – Significance of a final claim – Where construction contract makes no provision for payment claim – Whether construction contract ousts default statutory provision for reference dates – Where contract is terminated – Whether default statutory provision for reference dates applies if construction contract is terminated – Building and Construction Industry Security of Payment Act 2002 (Vic), ss 9, 14.

WORDS AND PHRASES – ‘deposit moneys ’– ‘de novo hearing’ – ‘final claim’ – ‘final payment claim’ – ‘jurisdictional fact’ – ‘payment claim’ – ‘progress claim’ – ‘reference date’ – ‘retention moneys’.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N J Phillpott	Whitelaw Flynn Lawyers
For the First Defendant	Mr B Reid	Colin Biggers & Paisley Lawyers
For the Second Defendant	No appearance[1]

[1]By email dated 19 July 2018, the second defendant advised the Court he will be bound by the decision in the proceeding but will otherwise take no part provided no costs are sought against him.

HIS HONOUR:

Application for judicial review

In this proceeding, The Cat Protection Society of Victoria (the plaintiff) seeks relief in the nature of certiorari quashing an Adjudication Determination made by Mr John McMullan (the second defendant) under the Building and Construction Industry Security of Payment Act 2002 (the SOP Act).[2] The Adjudication Determination was made in favour of Arvio Pty Ltd (the first defendant) pursuant to a payment claim it served under a construction contract (the Contract) with the plaintiff.
[2]Originating Motion for Judicial Review filed 19 July 2018.

The plaintiff also seeks a declaration that the Adjudication Determination is void and seeks injunctive relief enjoining the first defendant from taking steps to enforce this Adjudication Determination or recover the amount identified therein.[3]
[3]Ibid.

For the reasons that follow, I have decided that the Adjudication Determination should be quashed and declared void, and that the first defendant should be enjoined from taking steps to enforce the Adjudication Determination.

Background
Construction Contract

The plaintiff entered into the Contract with the first defendant on or around 15 January 2016.[4] Under the Contract the first defendant was engaged by the plaintiff to build…

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: [2018] VSC 757
Decision Date: 10 December 2018

CaseChat Overview and Summary

The case of Cat Protection Society v Arvio involved a dispute between the Cat Protection Society and Arvio. The matter came before the Supreme Court of Victoria. The Society sought judicial review of an adjudication determination made by an adjudicator under the Building and Construction Industry Security of Payment Act 2002 (Vic). The Society argued that the determination was flawed and sought relief in the form of certiorari, an injunction, and a declaration.

The primary legal issues before the court were whether the adjudication determination contained jurisdictional errors and, if so, whether any such errors rendered the determination vitiated. The court had to determine the significance of the reference dates in the adjudication, whether the payment claim was a 'final claim' as defined in the Act, and whether the construction contract between the parties ousted the default statutory provision for reference dates. The court also had to consider whether the default statutory provision for reference dates applied following the termination of the construction contract.

The court held that the adjudication determination contained jurisdictional errors. It found that the determination did not correctly identify the reference date under the statutory provisions and that the payment claim was not a 'final claim'. The court further held that the construction contract did not oust the default statutory provision for reference dates and that the default provision applied even after the contract was terminated. As a result, the court granted the Society's application for judicial review and quashed the adjudication determination.

The court made an order quashing the adjudication determination and issued a declaration that the determination was vitiated by jurisdictional error. The court also ordered that the Society's costs of the application be paid by Arvio.

Orders