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Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd

Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd

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Case Copied 13 July 2005 53 min read

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CITATION:
Coordinated Construction Co. Pty. Ltd. v. Climatech (Canberra) Pty. Ltd. & Ors. [2005] NSWCA 229

HEARING DATE(S):
10 June 2005

JUDGMENT DATE:

13 July 2005

JUDGMENT OF:
Hodgson JA at 1; Ipp JA at 34; Basten JA at 37

DECISION:
Appeal dismissed with costs

CATCHWORDS:
BUILDING AND CONSTRUCTION - Progress payments - Building & Construction Industry Security of Payment Act - Adjudicator's determination - Whether "delay damages" under contract are "for" construction work or related goods and services - Whether delay damages can be included in payment claims under the Act.

LEGISLATION CITED:
Building & Construction Security of Payment Act 1999, ss.3, 4, 6, 8, 9, 10, 11, 13, 17 and 22.

CASES CITED:
Brodyn Pty. Ltd. v. Davenport [2004] NSWCA 394
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293
Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWSC 312
Coordinated Constructions Co. Ltd v. J.M. Hargreaves (NSW) Pty. Ltd. [2005] NSWCA 228
Coordinated Constructions Co. Pty. Ltd. v. J.M. Hargreaves (NSW) Pty. Ltd. [2005] NSWSC 77
In Re An Arbitration Between Taylor Woodrow International Ltd. and The Minister of Health (1978) 19 SASR 1
John Holland Pty. Ltd. v. Cardno MBK (NSW) Pty. Ltd. [2004] NSWSC 258
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1994) 69 CLR 407
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
The Minister for Commerce v. Contrax Plumbing (NSW) Pty. Ltd. [2005] NSWCA 142
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55

PARTIES:
Coordinated Construction Co. Pty. Ltd. - appellant
Climatech (Canberra) Pty. Ltd. - 1st respondent
Gerald Raftesath - 2nd respondent
LEADR - 3rd respondent

FILE NUMBER(S):
CA 40302/05

COUNSEL:
Mr. M.G. Rudge SC with Mr. M. Christie for appellant
Mr. D.D. Feller SC with Mr. D.M. Loewenstein for respondents

SOLICITORS:
Colin Biggers & Paisley, Sydney for appellant
James R. Knowles Lawyers, Sydney for respondents

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
SC55012/05

LOWER COURT JUDICIAL OFFICER:
Bergin J

CA 40302/05
SC 55012/05

HODGSON JA
IPP JA
BASTEN JA
Wednesday 13 July 2005

COORDINATED CONSTRUCTION CO. PTY. LTD. V. CLIMATECH (CANBERRA) PTY. LTD & ORS.

Judgment

1 HODGSON JA: On 13 April 2005, Bergin J gave judgment in proceedings in which the appellant (Coordinated) sought a declaration that an adjudication determination made by the second respondent (the adjudicator) was void, or alternatively an order quashing this determination; and also sought consequential relief against the first respondent (Climatech) and the fourth respondent (LEADR).

2 The primary judge refused the relief sought, and dismissed Coordinated’s summons. Coordinated has appealed from that decision.

CIRCUMSTANCES

3 On 23 June 2003,…

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: [2005] NSWCA 229
Decision Date: 13 July 2005

CaseChat Overview and Summary

Coordinated Construction Co Pty Ltd (the applicant) sought judicial review of a determination made by an adjudicator under the *Building and Construction Industry Security of Payment Act 2004* (ACT) (the Act). The adjudicator had allowed a claim for "delay damages" made by Climatech (Canberra) Pty Ltd (the respondent) in a payment claim. The applicant argued that these delay damages were not recoverable under the Act.

The primary legal issue before the Court of Appeal of the Supreme Court of the Australian Capital Territory was whether "delay damages" as defined in the parties' building contract constituted a claim for "construction work" or "related goods and services" within the meaning of the Act, thereby rendering them amenable to an adjudication claim. The court also considered whether the adjudicator had erred in law by including such damages in their determination.

The court reasoned that the Act is designed to facilitate cash flow within the building and construction industry by providing a statutory regime for progress payments. It held that the contractual entitlement to delay damages arose directly from the respondent's performance of its obligations under the contract, specifically its entitlement to be paid for work done and for losses incurred due to delays for which the applicant was responsible. Therefore, these damages were sufficiently connected to the provision of construction work and related goods and services to fall within the scope of the Act. The court distinguished between damages for breach of contract and a contractual entitlement to payment for losses arising from delays, finding the latter to be within the ambit of the Act.

The appeal was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

Appeal dismissed with costs

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

Full text does not contain this section.

CITATION:	Coordinated Construction Co. Pty. Ltd. v. Climatech (Canberra) Pty. Ltd. & Ors. [2005] NSWCA 229
HEARING DATE(S):	10 June 2005
JUDGMENT DATE:	13 July 2005
JUDGMENT OF:	Hodgson JA at 1; Ipp JA at 34; Basten JA at 37
DECISION:	Appeal dismissed with costs

CATCHWORDS:	BUILDING AND CONSTRUCTION - Progress payments - Building & Construction Industry Security of Payment Act - Adjudicator's determination - Whether "delay damages" under contract are "for" construction work or related goods and services - Whether delay damages can be included in payment claims under the Act.
LEGISLATION CITED:	Building & Construction Security of Payment Act 1999, ss.3, 4, 6, 8, 9, 10, 11, 13, 17 and 22.
CASES CITED:	Brodyn Pty. Ltd. v. Davenport [2004] NSWCA 394 Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWSC 312 Coordinated Constructions Co. Ltd v. J.M. Hargreaves (NSW) Pty. Ltd. [2005] NSWCA 228 Coordinated Constructions Co. Pty. Ltd. v. J.M. Hargreaves (NSW) Pty. Ltd. [2005] NSWSC 77 In Re An Arbitration Between Taylor Woodrow International Ltd. and The Minister of Health (1978) 19 SASR 1 John Holland Pty. Ltd. v. Cardno MBK (NSW) Pty. Ltd. [2004] NSWSC 258 Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1994) 69 CLR 407 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 The Minister for Commerce v. Contrax Plumbing (NSW) Pty. Ltd. [2005] NSWCA 142 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
PARTIES:	Coordinated Construction Co. Pty. Ltd. - appellant Climatech (Canberra) Pty. Ltd. - 1st respondent Gerald Raftesath - 2nd respondent LEADR - 3rd respondent
FILE NUMBER(S):	CA 40302/05
COUNSEL:	Mr. M.G. Rudge SC with Mr. M. Christie for appellant Mr. D.D. Feller SC with Mr. D.M. Loewenstein for respondents
SOLICITORS:	Colin Biggers & Paisley, Sydney for appellant James R. Knowles Lawyers, Sydney for respondents

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC55012/05
LOWER COURT JUDICIAL OFFICER:	Bergin J