Endeavour Constructions Pty Ltd v Down Under Piling Australia Pty Ltd - [2023] VSC 424

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST

S ECI 2022 04386

ENDEAVOUR CONSTRUCTIONS PTY LTD (ACN 629 118 163)	Plaintiff
v
DOWN UNDER PILING PTY LTD (ACN 634 721 681)	First Defendant
SAUL ROZENBES	Second Defendant

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JUDGE:	Stynes J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2023
DATE OF JUDGMENT:	25 July 2023
CASE MAY BE CITED AS:	Endeavour Constructions Pty Ltd v Down Under Piling Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 424

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ADMINISTRATIVE LAW — Judicial review — Jurisdictional error — Review of adjudication determination made under the Building and Construction Industry Security of Payment Act 2002 (Vic) — Validity of reference date arising under Building and Construction Industry Security of Payment Act 2002 (Vic) s 9(2)(d)(iii) turns on when construction work was last carried out under construction contract — Validity of purported notice served under Building and Construction Industry Security of Payment Act 2002 (Vic) s 18(2) — Adjudication determination upheld — Vinson v Neerim Properties Developments Pty Ltd [2016] VSC 321, applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	A R Morrison	Nicholas O’Donohue & Co
For the First Defendant	A Ritchie	Turnbull Brown Lawyers

Contents

A.. Introduction

B... Summary of decision

C.. Background

C.1 The Contract and the construction works
C.2The SOP Act and the Determination

D.. Legal principles – Jurisdictional error

E... Issue 1 — Was the 6 July Payment Claim supported by a valid reference date?

E.1          How the issue arises
E.2          Adjudicator’s Determination
E.3          Competing evidence
E.3.1        Endeavour’s evidence
E.3.2        DUPA’s evidence
E.3.3        Counsel’s submissions about the competing evidence

E.4 Consideration

F... Issue 2 – Was a valid notice served under s 18(2) of the SOP Act?

F.1          Adjudicator’s Determination
F.2          Submissions
F.3          Consideration

G.. Orders

HER HONOUR:

A Introduction

The plaintiff, Endeavour Constructions Pty Ltd (‘Endeavour’), seeks an order in the nature of certiorari that the adjudication determination made by the second defendant, Mr Rozenbes (‘the Adjudicator’), dated 29 August 2022 (‘Determination’) be quashed.
The Determination was delivered under s 23 of the Building and Construction Industry Security of Payment Act 2002 (Vic) (‘SOP Act’) and was made in respect of a claim for final payment served by the first defendant, Down Under Piling Australia Pty Ltd (‘DUPA’). DUPA served this final payment claim on 6 July 2022 seeking the sum of $125,989.68[1] from Endeavour (‘6 July Payment Claim’). The Adjudicator determined that $119,379.81 was payable by Endeavour to DUPA.
[1]All amounts are inclusive of GST unless stated otherwise.
Endeavour challenges the Determination on the basis that the 6 July Payment Claim was not supported by a valid reference date under the SOP Act. It also contends that DUPA failed to serve a valid notice in accordance with s 18(2) of the SOP Act (‘s 18(2) Notice‘) before applying for adjudication.
The issues that arise for determination are:
(a)Issue…

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: [2023] VSC 424
Decision Date: 25 July 2023

CaseChat Overview and Summary

The case of Endeavour Constructions Pty Ltd v Down Under Piling Australia Pty Ltd involved a dispute between two construction companies over a payment claim under the Building and Construction Industry Security of Payment Act 2002 (Vic). The matter was heard in the Supreme Court of Victoria. Down Under Piling Australia Pty Ltd sought a review of an adjudication determination made under the Act. The primary issue before the court was whether the reference date, which determined the validity of the adjudication, was correctly identified under section 9(2)(d)(iii) of the Act. The court also had to consider the validity of a notice served under section 18(2) of the Act.

The court found that the reference date was correctly identified by the adjudicator, as it was based on the last date that construction work was carried out under the construction contract. The court held that the adjudicator had the authority to determine the reference date, and that there was no jurisdictional error in the adjudicator's decision. The court further found that the notice served under section 18(2) of the Act was valid, as it was properly served within the required time frame.

In reaching its decision, the court applied the principles set out in Vinson v Neerim Properties Developments Pty Ltd [2016] VSC 321, which established that the review of an adjudication determination is limited to jurisdictional error. The court held that the adjudicator's determination was not affected by any jurisdictional error, and therefore the adjudication determination was upheld. The court dismissed the application for review and ordered the respondent to pay the applicant's costs of the proceedings.

Orders