Chase Oyster Bar v Hamo Industries - [2010] NSWSC 332

CITATION: Chase Oyster Bar v Hamo Industries [2010] NSWSC 332
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21 April 2010

JURISDICTION: Equity Division
Technology & Construction List

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 21 April 2010

DECISION: (1) I make an order in accordance with the document initialled by me and dated today's date.
(2) I direct that the answers to the separate questions be recorded.
(3) I direct the plaintiff to submit to my associate by 5pm on 22 April 2010 draft orders and directions covering, among other things, the terms of the issue to be referred to the Court of Appeal and the giving of notice under s 78B of the Judiciary Act 1903 (Cth).
(4) I reserve the costs of the hearing to date.
(5) I note that the plaintiff by counsel continues the usual undertaking as to damages and the first defendant accepts that its undertaking given to the Court on 29 March 2010 remains binding on it until the further order of the Court.

CATCHWORDS: BUILDING AND ENGINEERING CONTRACTS – challenge to adjudicator’s determination – whether open for adjudicator to conclude contract was wholly in writing or relevant terms were written – where notice of intention to apply for adjudication of payment claim not given within time limit – whether jurisdictional error by adjudicator in concluding that notice was served within time limit – preliminary questions for determination – date of service on plaintiff of first defendant’s payment claim – date for payment of progress payment – date by which first defendant was required to give notice of intention to seek adjudication – date on which actual notice was given – whether it was open to adjudicator to conclude that first defendant’s notice had been served in accordance with statutory time requirements – Building and Construction Industry Security of Payment Act 1999 (NSW) ss 17(2)(a), 31 - Interpretation Act 1987 (NSW) s 76. - PROCEDURE – Supreme Court procedure – New South Wales – removal of proceedings – where plaintiff submitted that reasoning of Court of Appeal in Brodyn could no longer be supported in light of subsequent High Court case – where point is one for Court of Appeal – issue to be referred to Court of Appeal for determination – Supreme Court Act 1970 (NSW) s 51(5).

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)
Interpretation Act 1987 (NSW)
Judiciary Act 1903 (Cth).
Supreme Court Act 1970 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421
Halkat Electrical Constructors Pty Ltd v Holmwood Holdings Pty Ltd [2007] NSWCA 32
JAR Developments Pty Ltd v Castleplex Pty Ltd [2007] NSWSC 737
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531

PARTIES: Chase Oyster Bar Pty Ltd (First Plaintiff)
Cheryl Fran (Second Plaintiff)
Paul Della Marta (Third Plaintiff)
Hamo Industries Pty Ltd…

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 332
Decision Date: 21 April 2010

CaseChat Overview and Summary

The plaintiff, Chase Oyster Bar, brought an application to the Supreme Court of New South Wales seeking judicial review of an adjudicator’s determination in a dispute between the parties regarding a building and engineering contract. The core issue was whether it was permissible for the adjudicator to conclude that the contract was wholly in writing or that certain terms were written, and if the first defendant, Hamo Industries, had complied with the statutory time limits for serving a notice of intention to apply for adjudication of a payment claim.

The legal issues for the court to determine included whether the adjudicator had erred in finding that the notice of intention to apply for adjudication was served within the statutory time limit, and if it was open to the adjudicator to conclude that the first defendant’s notice had been served in accordance with the statutory requirements. These issues hinged on the interpretation of statutory provisions under the Building and Construction Industry Security of Payment Act 1999 (NSW) and the Interpretation Act 1987 (NSW).

The court considered the dates of service of the payment claim, the due date for payment, and the statutory deadline for giving notice of intention to seek adjudication. It found that the adjudicator’s conclusion that the notice was served within the required time limit was open to challenge and could constitute a jurisdictional error. The court held that the matter involved a preliminary question for determination and referred the issue to the Court of Appeal for its determination, as per section 51(5) of the Supreme Court Act 1970 (NSW).

Orders