EC & M PTY LTD and CTEC PTY LTD - [2013] WASAT 114

EC & M PTY LTD and CTEC PTY LTD [2013] WASAT 114

Last Update: 25/07/2013

EC & M PTY LTD and CTEC PTY LTD [2013] WASAT 114
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 114
Act:	CONSTRUCTION CONTRACTS ACT 2004 (WA)
Case No:	CC:1891/2012	Heard:	4 FEBRUARY 2012 AND 30 MAY 2013
Coram:	MR C RAYMOND (SENIOR MEMBER)	Delivered:	19/07/2013
No of Pages:	18	Judgment Part:	1 of 1
Result:	Application to set aside decision under review dismissed Decision under review affirmed
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	EC & M PTY LTD CTEC PTY LTD GLYNN LOGUE
Catchwords:	Construction Contracts Act 2004 (WA) Application for review of decision by an adjudicator to dismiss Whether adjudication lodged out of time Effect of notice from Principal disputing claim when contract provides for assessment by Superintendent Whether contract has provisions on how to respond to claim Whether statutory terms implied
Legislation:	Construction Contracts (Security of Payments) Act (NT), s 8, s 8(a) Construction Contracts Act 2004 (WA), s 3, s 6, s 17, s 22, s 26, s 27, s 46, Sch 1 Div 4, Div 5, Div 9
Case References:	Blackadder Scaffolding (Aust) Pty Ltd v Mirvac Homes (WA) Pty Ltd [2009] WASAT 133 Commodore Homes (WA) Pty Ltd and Deegan & Anor [2007] WASAT 45 Department of Construction and Infrastructure v Urban & Rural Contracting Pty Ltd & Anor [2012] NTSC 22 Dig Deep Investments Pty Ltd and North-West Constructions Pty Ltd [2013] WASAT 60 Fuel Tank & Pipe v Decmil Australia Pty Ltd [2010] WASAT 165 Grahame Allen Earthmoving Pty Ltd v Woodwark Bay Development Corporation Ltd Queensland Supreme Court BC 8802422 (Unreported decision dated 15 December 1988) Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Orders:	On the application heard on 4 February 2012 and 30 May 2013 by Senior Member Clive Raymond, it is on 19 July 2013 ordered that: 1. The application to set aside the decision of the adjudicator to dismiss that part of the adjudication application relating to 13 variation claims disputed in part or rejected in a letter dated 8 August 2012 addressed by the respondent to the applicant is dismissed. 2. The decision under review is affirmed.
Summary:	The applicant applied under s 46 of the Construction Contracts Act 2004 (WA) for the review of a decision by an adjudicator to dismiss certain claims. The adjudicator relied on Blackadder Scaffolding (Aust) Pty Ltd v Mirvac Homes (WA) Pty Ltd [2009] WASAT 133 to find that a letter written by the respondent, as Principal under the relevant construction contract, rejecting some of the claims incorporated in a progress claim made by the applicant established the date on which the payment dispute arose, with the result that the adjudication application was dismissed as not having been prepared and served within the required time. The applicant contended that the decision relied upon was distinguishable on the facts because, in this…

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: [2013] WASAT 114
Decision Date: 19 JULY 2013

CaseChat Overview and Summary

EC & M Pty Ltd and CTEC Pty Ltd were the parties involved in this legal dispute, which was adjudicated in the Supreme Court of Western Australia. The dispute centred around the interpretation and application of the Construction Contracts Act 2004 (WA) in the context of an adjudicator's decision to dismiss a claim. The applicants, EC & M and CTEC, sought a review of the adjudicator's decision, arguing that their adjudication was not lodged out of time, and that the principal's notice disputing the claim was ineffective since the contract provided for assessment by the Superintendent. Additionally, they contended that the contract contained provisions on how to respond to a claim and that certain statutory terms should be implied into the contract.

The court was tasked with determining whether the adjudication was indeed lodged out of time, the effect of the notice from the principal disputing the claim, the existence of contract provisions on responding to a claim, and the implication of statutory terms into the contract. The applicants argued that the adjudicator had erred in dismissing their claim on the basis of timeliness and that the principal's notice disputing the claim was invalid since the contract specified that the Superintendent would assess the claim. Furthermore, they posited that the contract contained provisions regarding the response to a claim, and that statutory terms should be incorporated into the contract by implication.

In affirming the adjudicator's decision, the court found that the applicants' adjudication was indeed lodged out of time, and that the notice from the principal was valid despite the contract's provisions. The court held that the contract did not explicitly outline provisions for responding to a claim, and that there were no grounds for implying statutory terms into the contract. The court's reasoning was grounded in a meticulous analysis of the contract terms, the statutory provisions, and the procedural history of the dispute. Consequently, the application to set aside the decision under review was dismissed, and the decision under review was affirmed.

In summary, the Supreme Court of Western Australia upheld the adjudicator's decision, dismissing the applicants' claims and affirming the original adjudication. The court's ruling was based on a detailed examination of the contractual provisions, the statutory framework, and the procedural aspects of the dispute. The applicants' efforts to challenge the adjudicator's decision were ultimately unsuccessful, and the original adjudication remained in place.

Orders

Orders of the court

Application to set aside decision under review dismissed

Decision under review affirmed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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