Douglas Aerospace v Indistri Engineering Albury - [2014] NSWSC 1445

Supreme Court

New South Wales

Medium Neutral Citation: Douglas Aerospace v Indistri Engineering Albury [2014] NSWSC 1445
Hearing dates: 20/10/2014
Decision date: 20 October 2014
Jurisdiction: Equity Division
Before: McDougall J
Decision:
Summons dismissed with costs.

Catchwords:
BUILDING AND CONSTRUCTION - adjudication applications - whether there was a valid construction contract between the parties - where name in contract not the same as name on adjudication application - where invoices issued in a different name to the name in the construction contract - whether correct specification of ACN and ABN evidence an intention that the first defendant be "Contractor" to the construction contract - whether sufficient to show construction contract between the parties

BUILDING AND CONSTRUCTION - adjudication applications - whether first defendant gave plaintiff notice of intention to seek adjudication of the payment claim - where payment claim sent by facsimile transmission to facsimile number in contract - where facsimile transmission number in contract actually for a different company - where evidence that the plaintiff received s 17(2)(a) notice - whether sufficient evidence that letter sent to defendant asking them to no longer utilise the facsimile transmission number in the contract before notice was sent to that number - whether failure to give notice under s 17(2)(a) is jurisdictional error - application of s 17(2)(a) of the Building and Construction Industry Security of Payment Act 1999 (NSW)
BUILDING AND CONSTRUCTION - adjudication applications - whether adjudication application served on plaintiff - whether service of adjudication application is jurisdictional - where respondent could not lodge adjudication response even if adjudication application were served - where adjudication application was received - application of s 17(5) of the Building and Construction Industry Security of Payment Act 1999 (NSW)
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Cases Cited: Associated Midland Corporation Ltd v Bank of New South Wales (1984) 51 ALR 641
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393
Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421
Category: Principal judgment
Parties: Douglas Aerospace Pty Ltd (Plaintiff)
Indistri Engineering Albury Pty Ltd (First Defendant)
Johanne Tobin (Second Defendant)
Representation: Counsel:
N Obrart (Plaintiff)
CA Botsman (First Defendant)
Solicitors:
Keith Hurst & Associates (Plaintiff)
Kell Moore (First Defendant)

File Number(s): 2014/236651

Judgment (ex tempore - revised 20 October 2014)

HIS HONOUR: The plaintiff seeks an order quashing a determination made by the second defendant (the adjudicator) pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act). The adjudicator's determination was made in respect of what the first defendant contended and, it seems, the adjudicator accepted was a construction contract made between the first defendant and the plaintiff on 6 February 2013 (the Stage 2 contract).

The issues

The plaintiff says that there are three jurisdictional errors infecting the adjudicator's adjudication. In those circumstances, it says, it is entitled to the relief claimed. The first defendant does not submit that, if any of…

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: [2014] NSWSC 1445
Decision Date: 20 October 2014

CaseChat Overview and Summary

The dispute between Douglas Aerospace and Indistri Engineering Albury involved a challenge to the validity of a construction contract and the procedural compliance of an adjudication application. The case was heard in a relevant court, focusing on the statutory framework of the Building and Construction Industry Security of Payment Act 1999 (NSW). The primary issues before the court were whether there was a valid construction contract between the parties, if the required notices were provided as per the statutory requirements, and if the adjudication application was properly served.

The court examined whether the discrepancies in names and identification numbers in the contract and the adjudication application could still evidence an intention to form a construction contract. Additionally, the court assessed if the payment claim and the adjudication notice were correctly served and if the failure to serve the notice as required by s 17(2)(a) constituted a jurisdictional error. The court also considered the implications of the respondent's inability to lodge a response to the adjudication application, despite receiving it, in relation to s 17(5) of the Act.

After reviewing the evidence and arguments presented, the court determined that the discrepancies in names and numbers did not preclude the existence of a valid construction contract. The court found that the evidence of the parties' conduct and communications indicated an intention to enter into a construction contract. Regarding the notice requirements, the court held that while the notice was sent to an incorrect facsimile number, there was sufficient evidence that the required notice was received. The court concluded that the failure to provide the notice as per s 17(2)(a) was not a jurisdictional error. Finally, the court found that the service of the adjudication application was not defective as the respondent could not have lodged a response regardless of whether the application was properly served.

In summary, the court upheld the validity of the construction contract and found that the procedural requirements were sufficiently met, allowing the adjudication process to proceed.

Orders