CITY RESIDENCE PTY LTD and CATOI - [2013] WASAT 29

CITY RESIDENCE PTY LTD and CATOI [2013] WASAT 29

Last Update: 29/04/2013

CITY RESIDENCE PTY LTD and CATOI [2013] WASAT 29
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 29
Act:	CONSTRUCTION CONTRACTS ACT 2004 (WA)
Case No:	CC:1690/2012	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR C RAYMOND (SENIOR MEMBER)	Delivered:	28/02/2013
No of Pages:	12	Judgment Part:	1 of 1
Result:	Application refused Decision under review affirmed
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	CITY RESIDENCE PTY LTD PETER CATOI
Catchwords:	Construction Contracts Act 2004 (WA) application for review of decision by adjudicator to dismiss Whether application for adjudication made within time Meaning of 'days'
Legislation:	Construction Contracts Act 2004 (WA), s 26, s 31(2)(a)(ii) Home Building Contract Regulations 1992 (WA) State Administrative Tribunal Act 2004 (WA), s 87(1)
Case References:	Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] 219 CLR 165
Orders:	On the application determined on the documents by Senior Member Clive Raymond, it is on 28 February 2013 ordered that: 1. The decision under review is affirmed. 2. The application for review is dismissed. 3. The respondent's application for costs is dismissed.
Summary:	The applicant applied under the Construction Contracts Act 2004 (WA) for a review of a decision by an adjudicator to dismiss its adjudication application on the grounds that the application had been made out of time, contrary to the time period imposed by s 26 of that legislation. The outcome of the review depended on a proper construction of the construction contract entered into between the parties. The applicant contended that the adjudicator had erred in finding that progress claims had to be paid within seven calendar days of the date of the submission of the claim, as opposed to seven working days thereafter. After consideration of the contract and the parties' submissions, the Tribunal concluded that the adjudicator was correct in his construction of the contract and, consequently, that the decision under review should be affirmed. The Tribunal dismissed the respondent's application for costs on the basis that there was no sufficient basis established for departing from the usual rule that each party bear their own costs.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : COMMERCIAL & CIVIL ACT : CONSTRUCTION CONTRACTS ACT 2004 (WA) CITATION : CITY RESIDENCE PTY LTD and CATOI [2013] WASAT 29 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 28 FEBRUARY 2013 FILE NO/S : CC 1690 of 2012 BETWEEN : CITY RESIDENCE PTY LTD

Applicant

AND

PETER CATOI

Respondent

Catchwords:

Construction Contracts Act 2004 (WA) application for review of decision by adjudicator to dismiss - Whether application for adjudication made within time - Meaning of 'days'

Legislation:

Construction Contracts Act 2004 (WA), s 26, s 31(2)(a)(ii)
Home Building Contract Regulations 1992 (WA)
State Administrative Tribunal Act 2004 (WA), s 87(1)

(Page…

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: [2013] WASAT 29
Decision Date: 28 FEBRUARY 2013

CaseChat Overview and Summary

In the case of City Residence Pty Ltd and Catoi, the dispute arose from an adjudication under the Construction Contracts Act 2004 (WA). The applicant, City Residence, sought a review of the adjudicator's decision to dismiss its application for adjudication on the basis that it was not made within the required time frame. The application was filed in the Supreme Court of Western Australia, where the adjudicator's decision was challenged.

The primary legal issue before the court was the interpretation of the term 'days' within the context of the statutory time limit for making an application for adjudication. City Residence argued that the adjudicator's interpretation of 'days' to include weekends and public holidays was incorrect and that the application was made within the required time frame when considering only business days. The respondent, Catoi, contended that the adjudicator's interpretation was correct and that the application was indeed out of time.

The court held that the term 'days' should be interpreted to include weekends and public holidays as it was consistent with common usage and the context of the statutory provision. The court further found that the applicant had not provided any evidence to support its claim that the adjudicator's interpretation was incorrect or that the application was made within the required time frame. Consequently, the court affirmed the adjudicator's decision to dismiss the application for adjudication as out of time.

In light of the findings, the application for review was refused, and the decision under review was affirmed. The court did not grant the relief sought by City Residence and upheld the adjudicator's determination that the application was not made within the statutory time limit.

Orders

Orders of the court

Application refused

Decision under review affirmed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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