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David Hurst Constructions Pty Ltd v Durham

David Hurst Constructions Pty Ltd v Durham

Case [2008] NSWSC 318 28 February 2008

Adjudication

Procedural Fairness

Statutory Interpretation

Breach of Contract

Construction Law

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CITATION: David Hurst Constructions Pty Ltd v Helen Durham [2008] NSWSC 318
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 26 February 2008

JUDGMENT DATE :
26 February 2008

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 28 February 2008

DECISION: See paragraph [82] of the judgment

CATCHWORDS: BUILDING AND ENGINEERING CONTRACTS – Building and Construction Industry Security of Payment Act 1999 – adjudication determination – whether adjudicator considered material in breach of s20(2B) of the Act – whether adjudicator failed to comply with s22(2) of the Act – whether adjudicator misunderstood terms of contract, or their application – whether any such error invalidates determination – denial of procedural fairness – whether s21(4) of the Act imposes mandatory requirement on adjudicators if they are unable to make a determination on evidence before them – no evidentiary onus or presumption imposed by the Act.

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

CATEGORY: Principal judgment

CASES CITED: Brodyn Pty Ltd v Davenport [(2004) 61 NSWLR 421]
Brookhollow Pty Limited v R & R Consultants & Anor Pty Limited [2006] NSWSC 1
Coordinated Construction Co Pty Limited v J.M. Hargreaves (NSW) Pty Limited [2005] NSWCA 228
Halkat Electrical Contractors Pty Ltd v Holmwood Holdings Pty Ltd [2007] NSWCA 32
Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129
Oshlack v Richmond River Council (1998) 193 CLR 72
Pacific General Securities Limited & Anor v Soliman and Sons Pty Limited [2006] NSWSC 13

PARTIES: David Hurst Constructions Pty Ltd (Plaintiff)
Helen Durham (First Defendant)
Richard Shorten (Second Defendant)
Lorraine Shorten (Third Defendant)

FILE NUMBER(S): SC 55094/07

COUNSEL: Dr David Doyle (Solicitor) (Plaintiff)
M Christie (Second and Third Defendants)

SOLICITORS: The Builders' Lawyer (Plaintiff)
Philip Davenport (First Defendant)
Massey Bailey Solicitors (Second and Third Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL

26 February 2008 ex tempore (revised - 28 February 2008)

55094/07 DAVID HURST CONSTRUCTIONS PTY LTD v HELEN DURHAM & 2 ORS

JUDGMENT

1 HIS HONOUR: The first and second defendants (the proprietors) are the owners of land at 18 Day Street, Wagga Wagga (the site). The proprietors have entered into a contract with the plaintiff (the builder) for the construction of a building on the site. It is said that the contract was made in about May 2006. There is no doubt that the contract in question was a construction contract as that expression is defined in the Building and Construction Industry Security of Payment Act 1999 (the Act) and that under the contract the builder undertook to carry out construction work and supply related goods and services. (There was an issue raised as to the exclusion from the operation of the Act set out in section 7(2)(b), but that goes nowhere of present relevance.)

2 The builder made a payment claim on 21 September 2007. The amount claimed was…

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.

Continue reading David Hurst Constructions Pty Ltd v Durham

Details

AGLC: David Hurst Constructions Pty Ltd v Durham [2008] NSWSC 318
Case: [2008] NSWSC 318
Decision Date: 28 February 2008

CaseChat Overview and Summary

David Hurst Constructions Pty Ltd sought judicial review of an adjudicator’s determination in a dispute with Durham over payments under a construction contract. The Federal Circuit and Family Court of Australia was tasked with reviewing the adjudicator's decision.

The primary legal issues addressed were whether the adjudicator considered material in breach of section 20(2B) of the Building and Construction Industry Security of Payment Act 1999, whether the adjudicator failed to comply with section 22(2) of the Act, and if any errors by the adjudicator invalidated the determination. The court also considered whether there was a denial of procedural fairness and whether section 21(4) of the Act imposes a mandatory requirement on adjudicators when they are unable to make a determination on the evidence before them.

The court held that the adjudicator did not consider material in breach of section 20(2B) and did not fail to comply with section 22(2) of the Act. The court found that any misunderstanding of the terms of the contract or their application did not invalidate the determination. The court also held that there was no denial of procedural fairness and that section 21(4) of the Act does not impose a mandatory requirement on adjudicators if they are unable to make a determination on the evidence before them. The court further held that the Act does not impose any evidentiary onus or presumption on any party.

The court dismissed the application for judicial review, affirming the adjudicator's determination. The orders made included the dismissal of the application, with no orders as to costs.

Orders