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Dualcorp Pty Ltd v Remo Constructions Pty Ltd

Dualcorp Pty Ltd v Remo Constructions Pty Ltd

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Case Copied 15 April 2009 38 min read

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Reported Decision: 74 NSWLR 190

New South Wales

Court of Appeal

CITATION: Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69

HEARING DATE(S): 10 March 2009

JUDGMENT DATE:
15 April 2009

JUDGMENT OF: Allsop P at 1; Macfarlan JA at 17; Handley AJA at 76

DECISION: (a) Leave to appeal granted.
(b) Appeal dismissed.
(c) The applicant/appellant to pay the respondent's costs of the leave application and of the appeal.

CATCHWORDS: CONTRACTS - Building and Construction Industry Security of Payment Act 1999 - progress claim for amounts the subject of a previous claim - adjudicator's determination that most of previous claim not maintainable - whether further claim precluded by provisions of the Act or principles of estoppel - ESTOPPEL - issue estoppel - adjudication under Building and Construction Industry Security of Payment Act 1999

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999
Workers' Compensation and Rehabilitation Act 1981 (WA)

CATEGORY: Principal judgment

CASES CITED: Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
John Goss Projects v Leighton Contractors & Anor [2006] NSWSC 798
Kuligowski v Metrobus [2004] HCA 34; (2004-2005) 220 CLR 363
Rothnere v Quasar & Ors [2004] NSWSC 1151
Walton v Gardiner [1993] HCA 77; (1992-3) 177 CLR 393

TEXTS CITED: Spencer Bower, Turner and Handley, Res Judicata, 3rd ed (1996) Butterworths

PARTIES: Dualcorp Pty Ltd (Appellant)
Remo Constructions Pty Ltd (Respondent)

FILE NUMBER(S): CA 40264/08

COUNSEL: F Corsaro SC/S Tzouganatos (Appellant)
G Inatey SC/F Hicks/P Coady (Respondent)

SOLICITORS: Turner Freeman (Appellant)
Blackstone Waterhouse (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1685/08

LOWER COURT JUDICIAL OFFICER: Quirk DCJ

LOWER COURT DATE OF DECISION: 10 March 2009

CA 50264/08
DC 1685/08

ALLSOP P
MACFARLAN JA
HANDLEY AJA
WEDNESDAY 15 APRIL 2009

DUALCORP PTY LTD v REMO CONSTRUCTIONS PTY LTD

Judgment

1 ALLSOP P: I have had the advantage of reading in draft the reasons of Macfarlan JA. I agree with the orders proposed by his Honour. His Honour’s reasons relieve me of the need to set out much of the background to and context of the appeal, as well as many of the provisions of the Building and Construction Industry Security of Payment Act 1999 (the “Act”).

2 I agree with Macfarlan JA that the Act was not intended to permit the repetitious use of the adjudication process to require an adjudicator or successive adjudicators to execute the same statutory task in respect of the same claim on successive occasions. A party in the position of the applicant (Dualcorp), here, should not be able to re-ignite the adjudication process at will in order to have a second or third or fourth go at the process provided by the Act merely because it is dissatisfied with the result of the first adjudication.

3 The…

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: [2009] NSWCA 69
Decision Date: 15 April 2009

CaseChat Overview and Summary

Dualcorp Pty Ltd (the applicant) sought to appeal a decision of the Supreme Court of New South Wales concerning a progress claim made by Remo Constructions Pty Ltd (the respondent) under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The dispute arose after the respondent made a progress claim, a significant portion of which had been the subject of a previous, unsuccessful claim that had been determined by an adjudicator. The applicant argued that the subsequent claim was precluded either by the Act itself or by the principles of issue estoppel.

The central legal issue before the Court of Appeal was whether the respondent was estopped from making a further progress claim for amounts that had been considered and found not maintainable in a prior adjudication under the *Building and Construction Industry Security of Payment Act 1999*. This involved determining the scope and effect of an adjudicator's determination and whether it created a binding precedent for subsequent claims between the same parties concerning the same subject matter.

The Court of Appeal, in dismissing the appeal, reasoned that the *Building and Construction Industry Security of Payment Act 1999* did not create a statutory bar to a subsequent claim that included amounts previously adjudicated upon. Furthermore, the Court held that the doctrine of issue estoppel did not apply in this context. The Court found that the prior adjudication did not definitively determine the ultimate contractual rights and obligations of the parties, but rather determined the maintainability of that specific progress claim. Consequently, the respondent was not prevented from making a further claim that included those amounts, provided it was otherwise validly made under the Act. The Court granted leave to appeal but ultimately dismissed the appeal, ordering the applicant to pay the respondent's costs.

Orders

Orders of the court

(a) Leave to appeal granted. (b) Appeal dismissed. (c) The applicant/appellant to pay the respondent's costs of the leave application and of the appeal.

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:	Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69
HEARING DATE(S):	10 March 2009
JUDGMENT DATE:	15 April 2009
JUDGMENT OF:	Allsop P at 1; Macfarlan JA at 17; Handley AJA at 76
DECISION:	(a) Leave to appeal granted. (b) Appeal dismissed. (c) The applicant/appellant to pay the respondent's costs of the leave application and of the appeal.
CATCHWORDS:	CONTRACTS - Building and Construction Industry Security of Payment Act 1999 - progress claim for amounts the subject of a previous claim - adjudicator's determination that most of previous claim not maintainable - whether further claim precluded by provisions of the Act or principles of estoppel - ESTOPPEL - issue estoppel - adjudication under Building and Construction Industry Security of Payment Act 1999
LEGISLATION CITED:	Building and Construction Industry Security of Payment Act 1999 Workers' Compensation and Rehabilitation Act 1981 (WA)
CATEGORY:	Principal judgment
CASES CITED:	Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 John Goss Projects v Leighton Contractors & Anor [2006] NSWSC 798 Kuligowski v Metrobus [2004] HCA 34; (2004-2005) 220 CLR 363 Rothnere v Quasar & Ors [2004] NSWSC 1151 Walton v Gardiner [1993] HCA 77; (1992-3) 177 CLR 393
TEXTS CITED:	Spencer Bower, Turner and Handley, Res Judicata, 3rd ed (1996) Butterworths
PARTIES:	Dualcorp Pty Ltd (Appellant) Remo Constructions Pty Ltd (Respondent)
FILE NUMBER(S):	CA 40264/08
COUNSEL:	F Corsaro SC/S Tzouganatos (Appellant) G Inatey SC/F Hicks/P Coady (Respondent)
SOLICITORS:	Turner Freeman (Appellant) Blackstone Waterhouse (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1685/08
LOWER COURT JUDICIAL OFFICER:	Quirk DCJ
LOWER COURT DATE OF DECISION:	10 March 2009