CMF Projects Pty Ltd v Masic Pty Ltd

Case [2014] QSC 209

SUPREME COURT OF QUEENSLAND

CITATION:

CMF Projects Pty Ltd v Masic Pty Ltd & Ors [2014] QSC 209

PARTIES:

CMF PROJECTS PTY LTD
ACN 114 539 212
(applicant)
v
MASIC PTY LTD
ACN 152 116 679
(first respondent)
and
SCOTT PETTERSSON
(second respondent)
and
AJUDICATE TODAY PTY LTD
ABN 39 109 605 021
(third respondent)

FILE NO:

1972 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

27 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

28 March 2014

JUDGE:

Daubney J


 ORDERS:

1.There be a declaration that the adjudication decision made by the second respondent and dated 29 January 2014 is void.   

2.I will hear the parties as to costs.   

CATCHWORDS:

COMMUNICATIONS LAW – POSTAL SERVICES – NON-DELIVERY OR ERRONEOUS DELIVERY – where the applicant seeks a declaration that the adjudicator’s decision is void – where the adjudicator did not consider the applicant’s “adjudication response” – where the adjudicator excluded the “adjudication response” from consideration as it was not received within the required time limits of s 24 of the Building and Construction Industry Payments Act 2004 (Qld) – where the applicant contends that its “adjudication response” was in time, due to the way in which the “notice of an adjudicator’s acceptance of the application” was served on the applicant – whether the “adjudication response” conformed with the requirements of s 24 and consequently the adjudicator’s decision is void for not taking the “adjudication response” into consideration

Acts Interpretation Act 1954 (Qld), s 39
Corporations Act 2001 (Cth), s 109X
Building and Construction Industry Payments Act 2004 (Qld), ss 21, 23, 24, 25 and 103

Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394, cited
Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259, cited
Firedam Civil Engineering Pty Ltd v KGP Construction [2007] NSWSC 1162, cited
Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd [2012] 1 Qd R 525; [2011] QCA 22, cited
Polstar v Agnew (2007) 208 FLR 226; [2007] NSWSC 114, followed

Scope Data Systems Pty Ltd v Goman (2007) 70 NSWLR 176; [2007] NSWSC 278, cited

COUNSEL:

G Coveney for the applicant
A Lonergan for the first respondent
No appearance for the second respondent
No appearance for the third respondent

SOLICITORS:

Arrow Law for the applicant
Usher Levi Lawyers for the first respondent
No appearance for the second respondent
No appearance for the third respondent

  1. The applicant (“CMF”) seeks a declaration that an adjudication decision made on


    29 January 2014 by the second respondent under the Building and Construction Industry Payments Act 2004 (“BCIPA”) is void. 

  1. In August 2013, CMF and the first respondent (“Masic”) entered into a construction contract for the performance of certain concrete works by Masic. This work was subsequently completed. On 5 December 2013, Masic served on CMF a payment claim under s 17 of BCIPA by which it claimed $48,993.60 (inclusive of GST) for contract…

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Details
AGLC
CMF Projects Pty Ltd v Masic Pty Ltd [2014] QSC 209
Case
[2014] QSC 209
Decision Date

CaseChat Overview and Summary

CMF Projects Pty Ltd brought proceedings against Masic Pty Ltd, contesting the validity of an adjudication decision made by an adjudicator in a building and construction dispute. The matter was heard in the Queensland Court of Appeal. The primary issue was whether the adjudicator's decision was void because the adjudicator failed to consider the applicant's "adjudication response" submitted in the course of the adjudication process. The applicant argued that its response was timely, despite the adjudicator excluding it on the grounds that it was not received within the statutory time limit set out in section 24 of the Building and Construction Industry Payments Act 2004 (Qld).

The court was tasked with determining whether the adjudicator's decision was rendered void due to the non-consideration of the applicant's "adjudication response". The applicant contended that the response was timely because of the way in which the "notice of an adjudicator’s acceptance of the application" was served on them, which affected their ability to calculate the statutory time limits. The court considered the statutory provisions, the procedural fairness, and the implications of the adjudicator's decision not to consider the "adjudication response". The court concluded that the adjudicator's decision was indeed void as it failed to take into account the applicant's "adjudication response", which should have been considered in accordance with the statutory requirements.

The Queensland Court of Appeal declared that the adjudication decision made by the adjudicator on 29 January 2014 was void. The court also noted that it would hear the parties regarding the costs associated with the proceedings. This decision underscores the importance of strict adherence to statutory time limits in adjudication processes and highlights the consequences of failing to consider all submissions made by parties within the prescribed timeframe.

Orders

Orders of the court

1.There be a declaration that the adjudication decision made by the second respondent and dated 29 January 2014 is void.

2.I will hear the parties as to costs.

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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