Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd

Case [2014] QSC 30


SUPREME COURT OF QUEENSLAND

CITATION:

Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd and Anor [2014] QSC 30

PARTIES:

CONVEYOR & GENERAL ENGINEERING PTY LTD
ACN 091 865 235

(Applicant)

v

BASETEC SERVICES PTY LTD
ACN 086 798 361

(First Respondent)

and

JOHN SAVAGE (ADJUDICATION REGISTRATION NO J1057073)

(Second Respondent)

FILE NO/S:

BS 9535 of 2013

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

7 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

29 October 2013

JUDGE:

Philip McMurdo J

ORDER:

It is declared that the decision of the second respondent, dated 10 September 2013 from an adjudication between the applicant and the first respondent is of no effect.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – RENUMERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the applicant challenges an adjudicator’s decision under the Building and Construction Industry Payments Act 2004 (Qld) – where some of the adjudication application was served on the applicant by way of email – where other documents in the adjudication application were contained in a Dropbox file - whether the adjudication application was properly served on the applicant.

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the applicant challenges an adjudicator’s decision under the Building and Construction Industry Payments Act 2004 (Qld) – whether the adjudicator erred in concluding that the applicant was out of time to provide an adjudication response – whether the refusal to permit an adjudication response deprived the adjudicator of jurisdiction.

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the applicant challenges an adjudicator’s decision under the Building and Construction Industry Payments Act 2004 (Qld) – whether the adjudicator erred in concluding that the applicant was out of time to provide an adjudication response – whether the refusal to permit an adjudication response was a denial of natural justice.

Acts Interpretation Act 1954 (Qld), s 39
Acts Interpretation Act 1901 (Cth), s 28A
Building and Construction Industry Payments Act 2004 (Qld), s 17, s 18, s 21(3), s 21(5), s 24(1), s 103
Corporations Act 2001 (Cth), s 459G
Electronic Transactions (Queensland) Act 2001 (Qld), s 11, s 24

Austar Finance Group Pty Ltd v Campbell (2007) 215 FLR 464
Bauen Constructions Pty Ltd v Sky General Services Pty Ltd & Anor
[2012] NSWSC 1123
Capper v Thorpe
(1998) 194 CLR 342
Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd
[2006] NSWCA 259
Howship Holdings Pty Ltd v Leslie
(1996) 41 NSWLR 542
Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd (2010) 30 VR 141
Penfolds Projects Pty Ltd v Securcorp Limited
[2011] QDC 77

COUNSEL:

P D Tucker for the applicant

P A Heywood-Smith QC for the first respondent

No appearance for the second respondent

SOLICITORS:

Porter Davies Lawyers on behalf of the applicant

Amanda Forsyth as in-house counsel for the…

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AGLC
Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2014] QSC 30
Case
[2014] QSC 30
Decision Date

CaseChat Overview and Summary

The case of Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd involves a dispute between the applicant, Conveyor, and the first respondent, Basetec, regarding an adjudication decision made under the Building and Construction Industry Payments Act 2004 (Qld). The adjudication was between Conveyor and Basetec, with the second respondent, AdjudicateQ, acting as the adjudicator. Conveyor sought to challenge the adjudicator’s decision, claiming that the adjudication application was not properly served and that the adjudicator had erred in concluding that Conveyor was out of time to provide a response.

The primary legal issues in this case were whether the adjudication application was properly served on Conveyor and whether the adjudicator erred in concluding that Conveyor was out of time to provide a response. Additionally, Conveyor argued that the adjudicator's refusal to permit a response deprived the adjudicator of jurisdiction and amounted to a denial of natural justice. The court had to consider the service of the adjudication application, the timeliness of Conveyor's response, and the procedural fairness of the adjudication process.

The court found that the adjudication application was not properly served as some documents were served by email and others were contained in a Dropbox file. This non-compliance with the required service procedures led to the conclusion that the adjudication application was not properly served. Furthermore, the court found that the adjudicator did not err in concluding that Conveyor was out of time to provide a response. The court held that the adjudicator's refusal to permit a late response did not deprive the adjudicator of jurisdiction and did not amount to a denial of natural justice. Consequently, the decision of the adjudicator was upheld in its entirety.

The court declared that the decision of the adjudicator, dated 10 September 2013, from the adjudication between Conveyor and Basetec is of no effect. This outcome effectively nullifies the adjudicator’s decision, leaving the parties to resolve their dispute through other means, such as litigation or further negotiation.

Orders

Orders of the court

It is declared that the decision of the second respondent, dated 10 September 2013 from an adjudication between the applicant and the first respondent is of no effect.

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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