COOPER & OXLEY BUILDERS PTY LTD -v- STEENSMA [2016] WASC 386
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 386 | |
| Case No: | CIV:1157/2016 | 9 NOVEMBER 2016 | |
| Coram: | LE MIERE J | 30/11/16 | |
| 15 | Judgment 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
- Applicant
AND
AUKE STEENSMA
Respondent
AM LAND PTY LTD
Other Party
- 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.
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
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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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