Doolan v Rubikcon (Qld) Pty Ltd - [2007] QSC 168

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

[2007] QSC 168

FRYBERG J

No 3832 of 2007

SANDRA DOOLAN AND STEPHEN DOOLAN

Applicants

and

RUBIKCON (QLD) PTY LTD
(ACN 099 635 275)

and

IAN HILLMAN

and

AUSTRALIAN SOLUTIONS CENTRE PTY LTD
(ACN 085 917 219)

First Respondent

Second Respondent

Third Respondent

BRISBANE

..DATE 10/07/2007

ORDER

HIS HONOUR: This is an application to review the decision of an adjudicator appointed under the Building and Construction Industry Payments Act 2004.

The decision was that the applicants pay a progress payment to the first respondent in the sum of $43,533.82, and the total adjudication fees and expenses.

The second respondent is the adjudicator and the third respondent the appointing authority, and they have not appeared because they are abiding the decision of the Court.

The applicant, as owner, entered into a building contract with the first respondent on a Queensland Master Builders Association Standard Form on the 8th of February 2005. The contract provided for the first respondent, Rubikcon, to construct for the applicants, the Doolans, eleven new townhouses at Scarborough.

The work apparently proceeded and trouble arose only toward the end of the job. The detail of how the trouble arose does not matter for present purposes. It suffices to say that it related to the making of a final inspection and issue of a certificate and whether or not all works had been done which needed to be done.

There were also some questions, I gather, about defects but that does not matter for present purposes.

Rubikcon sought payment of a claim which it styled "Final Claim" for the amount to which I have already referred. The Doolans did not pay that claim.

The contract provided for progress payments. They were to be paid in accordance with a schedule which in the standard form provided two alternatives. The alternative selected by the parties was under the heading "Method B". It stated in handwriting under the sub-heading "Name of Stage or Description of Stage of Works":

"Proforma and tax invoice issued on or near to 20th of each month. Proforma to be a trade breakdown and percentages of work completed shown."

That is a rather opaque way of expressing what is supposed to be set out in the form (that is, the percentages of the contract price and amounts payable at the completion of each stage) and it does not sit happily with Cl 11.6 of the contract under which it is made, however nothing turns upon that in the present proceedings and no argument has been based upon it.

The money not having been paid, Rubikcon sought the appointment of Mr Hillman as adjudicator under the Act. That was done.

Mr Hillman dealt with the case and determined that the money should be paid. He decided on the 2nd of April this year that the Doolans should be liable to Rubikcon for that amount and that under the Act that amount became payable on the 27th of February 2007.

Since then Rubikcon has,…

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: [2007] QSC 168
Decision Date: 10 July 2007

CaseChat Overview and Summary

In the Supreme Court of Queensland, Sandra and Stephen Doolan brought an application to review an adjudicator's decision made under the Building and Construction Industry Payments Act 2004. The adjudicator had determined that the Doolans were liable to Rubikcon for a sum of $43,533.82, along with the adjudication fees and expenses. The Doolans argued that the adjudicator's decision was erroneous and breached natural justice principles. The respondents, including the adjudicator and appointing authority, did not appear in court as they were awaiting the outcome of the review. The Doolans had entered into a building contract with Rubikcon for the construction of eleven townhouses at Scarborough. Disputes arose towards the end of the project regarding the final inspection, the issue of a certificate, and alleged defects. Rubikcon submitted a "Final Claim" for payment, which the Doolans did not honour. Consequently, Rubikcon sought adjudication, which resulted in an order for the Doolans to pay the claimed amount. The Doolans sought judicial review, arguing that the adjudicator's decision was flawed and that there were breaches of natural justice.

The court examined the adjudicator's decision and the relevant statutory provisions, focusing on the interpretation of the Building and Construction Industry Payments Act 2004. The Act aims to ensure prompt payment of progress claims in the construction industry. The Doolans argued that Rubikcon had issued two identical final claims, which was impermissible under the Act. They contended that the adjudicator had erred in allowing the second claim. The court analysed the relevant sections of the Act, particularly sections 12 and 17, which pertain to the entitlement to progress payments and the service of payment claims. The court found that while the Act permits the inclusion of previous claims in later ones, it does not allow for identical claims to be made on different reference dates. The court concluded that the adjudicator's decision was invalid because the second claim was identical to the first, and thus did not found the jurisdiction of the adjudicator. The court did not need to address the alternative argument regarding the contract clause as the first argument was decisive. The court will hear further submissions on the appropriate form of order and the status of the filed adjudication certificate.

Orders