CITYGATE PROPERTIES PTY LTD -v- BGC CONSTRUCTION PTY LTD [2016] WASC 101

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 101
Case No:	CIV:2654/2015	Heard:	19 FEBRUARY 2016
Coram:	TOTTLE J	Delivered:	1/04/16
No of pages:	5	Judgment Part:	1 of 1
Result:	Application for leave to enforce determination granted
Category:	B
PDF Version

Parties:	CITYGATE PROPERTIES PTY LTD BGC CONSTRUCTION PTY LTD
Catchwords:	Construction Contracts Act 2004 (WA) Application to enforce Application granted Where determination made requires money to be paid by a contractor to a principal
Legislation:	Civil Judgments Enforcement Act 2004 (WA) Construction Contracts Act 2004 (WA), s 39(2), s 43(2)
Case References:	BGC Construction Pty Ltd v Citygate Properties Pty Ltd [2016] WASC 88 Thiess Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2011] WASC 80

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CITYGATE PROPERTIES PTY LTD -v- BGC CONSTRUCTION PTY LTD [2016] WASC 101 CORAM : TOTTLE J HEARD : 19 FEBRUARY 2016 DELIVERED : 1 APRIL 2016 FILE NO/S : CIV 2654 of 2015 BETWEEN : CITYGATE PROPERTIES PTY LTD

Plaintiff

AND

BGC CONSTRUCTION PTY LTD

Defendant

Catchwords:

Construction Contracts Act 2004 (WA) - Application to enforce - Application granted - Where determination made requires money to be paid by a contractor to a principal

Legislation:

Civil Judgments Enforcement Act 2004 (WA)

Construction Contracts Act 2004 (WA), s 39(2), s 43(2)

Result:

Application for leave to enforce determination granted

Category: B

Representation:

Counsel:

Plaintiff : Mr P G Clifford & Mr G J Dunn

Defendant : Mr M Hotchkin

Solicitors:

Plaintiff : Slee Anderson & Pidgeon

Defendant : Hotchkin Hanly Lawyers

Case(s) referred to in judgment(s):

BGC Construction Pty Ltd v Citygate Properties Pty Ltd [2016] WASC 88
Thiess Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2011] WASC 80

1 TOTTLE J: The plaintiff, Citygate, applies for leave to enter judgment against the defendant, BGC, in the sum of $815,868.94, together with interest, pursuant to s 8(1)(a) of the Civil Judgments Enforcement Act 2004 (WA).

2 On 23 September 2015 Mr Gordon Smith, an adjudicator appointed pursuant to the Construction Contracts Act 2004 (WA) (the Act), determined a payment dispute in Citygate's favour and decided that BGC should pay Citygate the sum of $815,868.94 ($741,699.04 plus GST of $74,169) on or before 30 September 2015.

3 The construction contract which gave rise to the payment dispute determined by the adjudicator is referred to in my reasons in BGC Construction Pty Ltd v Citygate Properties Pty Ltd [2016] WASC 88. Citygate is the owner and BGC is the contractor. Those reasons explain why writs of certiorari should issue to quash determinations made by another adjudicator on 3 March 2015 and 8 May 2015 respectively and why BGC's application for leave to enforce those determinations should be dismissed. Those earlier determinations provided for Citygate to pay BGC a total of $794,418.21.

The relevant legislative provisions

4 Section 43(2) of the Act provides that a…

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: [2016] WASC 101
Decision Date: 1 APRIL 2016

CaseChat Overview and Summary

The matter before the Court was an application by Citygate Properties Pty Ltd against BGC Construction Pty Ltd under the Construction Contracts Act 2004 (WA). The applicant, Citygate, sought to enforce a determination made by an adjudicator, which required BGC to pay a sum of money to Citygate. The primary issue before the Court was whether the determination should be enforced, despite the fact that BGC had not previously made an application for the determination to be reviewed or set aside.

The Court considered whether the determination was valid and whether the requirements of the Act had been properly followed. It was established that the adjudicator had jurisdiction to make the determination and that the process was conducted in a manner that complied with the statutory requirements. Given that BGC had not taken any steps to challenge the determination within the prescribed timeframe, the Court found that the determination was binding and enforceable. The Court noted that the Act aims to provide a speedy and inexpensive mechanism for resolving construction disputes, and the enforcement of the determination aligned with this objective.

As a result, the Court granted Citygate's application for leave to enforce the determination. The Court emphasised that the enforcement of the determination did not represent a final resolution of the dispute between the parties, but rather a temporary measure to ensure that Citygate received the funds owed to them under the determination. The Court also noted that BGC remained entitled to seek a review or setting aside of the determination in the future if it chose to do so. This decision underscores the importance of adhering to the statutory requirements and timelines when participating in adjudication processes under the Construction Contracts Act.

Orders

Orders of the court

Application for leave to enforce determination granted

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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