Cooper & Oxley Builders Pty Ltd v Steensma

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COOPER & OXLEY BUILDERS PTY LTD -v- STEENSMA [2016] WASC 386



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2016] WASC 386
Case No:CIV:1157/20169 NOVEMBER 2016
Coram:LE MIERE J30/11/16
15Judgment Part:1 of 1
Result: Certiorari should issue to quash each determination
B
PDF Version
Parties:COOPER & OXLEY BUILDERS PTY LTD
AUKE STEENSMA
AM LAND PTY LTD
STEVE LIEBLICH

Catchwords:

Judicial review
Certiorari
Whether adjudicator obliged to consider set off defence to payment claim under Construction Contracts Act
Jurisdictional error
Turns on own facts
Judicial review
Certiorari
Time at which liability is to be determined under Construction Contracts Act
Whether adjudication should have regard to evidence arising after payment claim is made
Whether adjudicator erred by supplying subcontract terms into contract via s 17 of the Construction Contracts Act
Jurisdictional error
Turns on own facts

Legislation:

Construction Contracts Act 2004 (WA), s 6, s 26, s 27, s 31, s 32

Case References:

Alliance Contracting Pty Ltd v James [2014] WASC 212
Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : COOPER & OXLEY BUILDERS PTY LTD -v- STEENSMA [2016] WASC 386 CORAM : LE MIERE J HEARD : 9 NOVEMBER 2016 DELIVERED : 30 NOVEMBER 2016 FILE NO/S : CIV 1157 of 2016 BETWEEN : COOPER & OXLEY BUILDERS PTY LTD
    Applicant

    AND

    AUKE STEENSMA
    Respondent

    AM LAND PTY LTD
    Other Party
FILE NO/S : CIV 1459 of 2016 BETWEEN : COOPER & OXLEY BUILDERS PTY LTD
    Applicant

    AND

    STEVE LIEBLICH
    Respondent

    AM LAND PTY LTD
    Other Party

Catchwords:

Judicial review - Certiorari - Whether adjudicator obliged to consider set off defence to payment claim under Construction Contracts Act - Jurisdictional error - Turns on own facts



Judicial review - Certiorari - Time at which liability is to be determined under Construction Contracts Act - Whether adjudication should have regard to evidence arising after payment claim is made - Whether adjudicator erred by supplying subcontract terms into contract via s 17 of the Construction Contracts Act - Jurisdictional error - Turns on own facts

Legislation:

Construction Contracts Act 2004 (WA), s 6, s 26, s 27, s 31, s 32

Result:

Certiorari should issue to quash each determination


Category: B


Representation:

CIV 1157 of 2016

Counsel:


    Applicant : Mr D S Ellis
    Respondent : No appearance
    Other Party : No appearance

Solicitors:

    Applicant : Mills Oakley Lawyers
    Respondent : No appearance
    Other Party : No appearance

CIV 1459 of 2016

Counsel:


    Applicant : Mr D S Ellis
    Respondent : No appearance
    Other Party : No appearance

Solicitors:

    Applicant : Mills Oakley Lawyers
    Respondent : No appearance
    Other Party : No appearance


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

Alliance Contracting Pty Ltd v James [2014] WASC 212
Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217


    LE MIERE J:




Summary

1 The applicant, Cooper & Oxley, entered into a construction contract with AM…

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Details
Case
[2016] WASC 386
Decision Date

CaseChat Overview and Summary

In the matter of Cooper & Oxley Builders Pty Ltd versus Steensma, the dispute was brought before the court concerning issues arising from the adjudication of payment claims under the Construction Contracts Act. The primary parties involved were Cooper & Oxley Builders Pty Ltd, the applicant, and Steensma, the respondent. The court was tasked with determining whether the adjudicator was obliged to consider a set-off defence to a payment claim and whether the adjudicator made a jurisdictional error by supplying subcontract terms into the primary contract via section 17 of the Act. Additionally, the court had to examine if the adjudicator erred by considering evidence that arose after the payment claim was made and ascertain the time at which liability is to be determined under the Act.

The legal issues centred on whether the adjudicator's failure to consider the set-off defence constituted a jurisdictional error. Furthermore, the court had to determine if the adjudicator erred by supplying subcontract terms into the primary contract and whether the adjudicator should have taken into account evidence that surfaced post the making of the payment claim. The applicant argued that these actions constituted jurisdictional errors that warranted the issuance of certiorari. The respondent contended that the adjudicator's decisions were within their jurisdiction and did not warrant judicial review.

In delivering its judgment, the court held that the adjudicator was indeed obliged to consider the set-off defence, and the failure to do so constituted a jurisdictional error. The court found that the adjudicator's actions in supplying subcontract terms into the primary contract via section 17 of the Act was also a jurisdictional error. Furthermore, the court ruled that the adjudicator should not have considered evidence that arose after the payment claim was made, as this was a breach of the procedural fairness principle. The court concluded that these errors were material and warranted the issuance of certiorari to quash each determination.

Orders

Orders of the court

Certiorari should issue to quash each determination

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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