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Energetech Australia Pty Ltd v Sides Engineering Pty Ltd

Energetech Australia Pty Ltd v Sides Engineering Pty Ltd

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Case Copied 25 November 2005 70 min read

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CITATION:
Energetech Australia v Sides Engineering [2005] NSWSC 1143

HEARING DATE(S): 16 & 17 November 2005

JUDGMENT DATE :

25 November 2005

JURISDICTION:
Equity
Technology & Construction List

JUDGMENT OF:
Campbell J

DECISION:
Court ought not involve itself in operation of statutorily prescribed scheme, except when called on to decide whether operation of that scheme had resulted in a valid decision. Submission of payment claim to adjudicator would not be misleading and deceptive, and would not be in trade or commerce.

CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – remuneration – payment claim under Building and Construction Industry Security of Payment Act 1999 – application for declarations and injunction to prevent payment claim from being submitted to adjudication on basis that payment claim was not made with respect to a reference date under the contract, or was made with respect to a reference date concerning which another payment claim had already been adjudicated – whether appropriate in principle for court to involve itself in such a question – STATUTES – ACTS OF PARLIAMENT – operation and effect of statutes – Act creating an obligation and providing means for securing compliance with that obligation – whether court intervention in the operation of that means of compliance permissible – TRADE PRACTICES AND RELATED MATTERS – consumer protection – submission by builder under building contract to proprietor of payment claim under Building and Construction Industry Security of Payment Act 1999 – whether submission of payment claim to adjudicator would be misleading and deceptive – whether submission of payment claim to adjudicator would be in trade and commerce

LEGISLATION CITED:
Building and Construction Industry Security of Payment Act 1999
Supreme Court Act 1970
Trade Practices Act 1974 (Cth)

CASES CITED:
Australian Remediation Services Pty Ltd v Earth Tech Engineering Pty Ltd & Anor [2005] NSWSC 362
Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421
Chapman v Luminis Pty Ltd (No. 5) (2001) 123 FCR 62; [2001] FCA 1106
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd & Ors [2005] NSWCA 229
Coordinated Constructions Co v J M Hargreaves & Ors [2005] NSWSC 77; (2005) 21 BCL 312
DCT v Brown (1958) 100 CLR 32
Doe d Rochester (Bishop) v Bridges (1831) 1B and Ad 847
Energetech v Sides Engineering & Anor [2005] NSWSC 801
Houston v Dewi Thomas Pty Ltd [1967] VR 300
Josephson v Walker (1914) 18 CLR 691
Kinzett v McCourt (1999) 46 NSWLR 32
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Kurt Keller Pty Ltd & Ors v BMW Australia Ltd & Ors [1984] 1 NSWLR 353
Lifestyle Retirement Projects No 2 v Parisi Homes [2005] NSWSC 705
Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173
Merman Pty Ltd v Cockburn Cement Ltd (1988) 84 ALR 521
The Minister for Commerce (formerly Public…

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: [2005] NSWSC 1143
Decision Date: 25 November 2005

CaseChat Overview and Summary

Energetech Australia Pty Ltd, a subcontractor, brought an action against Sides Engineering Pty Ltd, a principal contractor, in the Supreme Court of Queensland. The dispute centred around a payment claim submitted by Energetech under the Building and Construction Industry Security of Payment Act 1999 (Qld). Energetech sought declarations and an injunction to prevent Sides from submitting the payment claim to adjudication, claiming that it was either not made with respect to a reference date under the contract or was concerning a reference date for which another payment claim had already been adjudicated. Additionally, Energetech argued that submitting the payment claim to the adjudicator would be misleading and deceptive conduct under the Australian Consumer Law.

The court had to determine whether it was appropriate in principle for the court to involve itself in the operation of the statutory adjudication process. Specifically, the court had to consider whether the court's intervention in the operation of the means of compliance provided by the Act was permissible. Furthermore, the court needed to assess whether submitting the payment claim to the adjudicator would constitute misleading and deceptive conduct under the Australian Consumer Law, and whether such conduct was in trade or commerce.

In its decision, the court held that it was not appropriate for the court to intervene in the operation of the statutory adjudication process. The court found that the Act created an obligation and provided a means for securing compliance with that obligation, and it was not permissible for the court to interfere with that process. The court also concluded that submitting the payment claim to the adjudicator would not constitute misleading and deceptive conduct, as the conduct was not in trade or commerce. Consequently, the court dismissed Energetech's application for declarations and an injunction.

The Supreme Court of Queensland dismissed the application by Energetech Australia Pty Ltd against Sides Engineering Pty Ltd, finding that the court was not appropriate to intervene in the statutory adjudication process under the Building and Construction Industry Security of Payment Act 1999 (Qld), and that submitting the payment claim to the adjudicator would not constitute misleading and deceptive conduct under the Australian Consumer Law.

Orders