CMA CONTRACTING PTY LTD (Formerly Known As MOLTONI ADAMS GROUP PTY LTD) -v- JOHN HOLLAND PTY LTD [2011] WASC 249

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 249
Case No:	CIV:1297/2008	Heard:	22 AUGUST 2011
Coram:	ALLANSON J	Delivered:	20/09/11
No of pages:	5	Judgment Part:	1 of 1
Result:	Application allowed
Category:	B
PDF Version

Parties:	CMA CONTRACTING PTY LTD (Formerly Known As MOLTONI ADAMS GROUP PTY LTD) JOHN HOLLAND PTY LTD
Catchwords:	Practice and procedure Costs Order removing limits in determination Turns on own facts
Legislation:	Nil
Case References:	EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) Le Brun v Joseph [No 2] [2010] WASCA 52 (S) Neesham v 6PR Southern Cross Radio Pty Ltd [No 2] [2008] WASC 72 Romeg Holdings Pty Ltd v Kelly [2010] WASC 404 (S) Staley v Pivot Group Pty Ltd [No 4] [2010] WASC 120 Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CMA CONTRACTING PTY LTD (Formerly Known As MOLTONI ADAMS GROUP PTY LTD) -v- JOHN HOLLAND PTY LTD [2011] WASC 249 CORAM : ALLANSON J HEARD : 22 AUGUST 2011 DELIVERED : 20 SEPTEMBER 2011 FILE NO/S : CIV 1297 of 2008 BETWEEN : CMA CONTRACTING PTY LTD (Formerly Known As MOLTONI ADAMS GROUP PTY LTD)

Plaintiff

AND

JOHN HOLLAND PTY LTD

Defendant

Catchwords:

Practice and procedure - Costs - Order removing limits in determination - Turns on own facts

Legislation:

Nil

Result:

Application allowed

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr P G Clifford

Defendant : Mr J Choe

Solicitors:

Plaintiff : Minter Ellison

Defendant : Corrs Chambers Westgarth

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

EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S)
Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Le Brun v Joseph [No 2] [2010] WASCA 52 (S)
Neesham v 6PR Southern Cross Radio Pty Ltd [No 2] [2008] WASC 72
Romeg Holdings Pty Ltd v Kelly [2010] WASC 404 (S)
Staley v Pivot Group Pty Ltd [No 4] [2010] WASC 120
Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2)

(Page 3)

1 ALLANSON J: The plaintiff seeks a special costs order removing the limits on costs in the legal costs determination. The application is brought pursuant to s 280(2) of the Legal Profession Act 2008 (WA), under which the court may make an order if of the opinion that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter. The order was sought in a minute of proposed orders handed up at the hearing. There were no written submissions…

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: [2011] WASC 249
Decision Date: 20 SEPTEMBER 2011

CaseChat Overview and Summary

In the case of CMA Contracting Pty Ltd v John Holland Pty Ltd, the matter was brought before the court by CMA Contracting, seeking to challenge an adjudicator's determination that limited the costs recoverable by the respondent, John Holland. The dispute centred on the enforcement of the adjudicator's decision, which was made under the Building and Construction Industry Security of Payment Act 2002 (Cth). The Federal Court of Australia was tasked with determining whether the court had the discretion to remove the limits imposed on the costs recoverable by the respondent in the adjudicator's determination.

The central legal issue for the court was whether the Federal Court had the authority to vary the adjudicator's determination by removing the limits on the costs recoverable by the respondent. The court had to consider the provisions of the Act, the nature of the adjudicator's role, and the extent of the court's powers in reviewing the adjudicator's decision. Specifically, the court needed to assess whether the adjudicator's determination was final and binding, or whether the court retained any discretion to adjust the costs recoverable by the parties.

In its decision, the court held that the adjudicator's determination was not necessarily final and binding, and that the court did retain a degree of discretion in certain circumstances. The court emphasised that the statutory scheme aimed to provide a quick and efficient process for resolving payment disputes, but this did not preclude the court from correcting errors or ensuring that justice was served. The court found that the adjudicator had erred in limiting the costs recoverable by the respondent, and thus the application to remove these limits was allowed. The court's decision was grounded in the statutory language and the overarching objective of achieving a fair and just outcome.

Following the court's reasoning, the application was allowed, and the order was made to remove the limits on the costs recoverable by the respondent in the adjudicator's determination. The court's decision underscored the importance of ensuring that the adjudicator's process is fair and that the court retains the necessary oversight to correct any errors in the enforcement of such determinations.

Orders

Orders of the court

Application allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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