Equa Building Services Pty Ltd v KLG Trading Pty Ltd - [2021] NSWSC 1674

Supreme Court

New South Wales

Medium Neutral Citation: Equa Building Services Pty Ltd v KLG Trading Pty Ltd [2021] NSWSC 1674
Hearing dates: 13 December 2021; further written submissions 14 and 15 December 2021
Decision date: 17 December 2021
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision:
Summons dismissed with costs

Catchwords:
BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – service of copy of adjudication application – where adjudication application provided electronically to adjudication authority and adjudicator – where hard copy of adjudication application and USB drive served on plaintiff respondent – where plaintiff respondent initially could not open file on USB drive to view video – where some minor differences between hard copy served on plaintiff respondent and electronic copy provided to adjudication authority and adjudicator – whether what was served was a copy of that provided to adjudication authority and adjudicator – whether substantial compliance with requirements of s 17(5) of the Building and Construction Industry Security of Payment Act sufficient – whether plaintiff respondent denied procedural fairness – whether adjudicator failed to perform his statutory function
STATUTES – proper construction – whether s 17(5) of the Building and Construction Industry Security of Payment Act 1999 requires strict compliance – whether service of copy adjudication application in substantial compliance with s 17(5) effective

Legislation Cited:
Building and Construction Industry Security of Payment Act 1999 (NSW)
Corporations Act 2001 (Cth)
Interpretation Act 1987 (NSW)

Cases Cited:
Accident Compensation Commission v Murphy [1988] VR 444
Australian Capital Television Pty Ltd v Minister for Transport & Communications (1989) 86 ALR 119; [1989] FCA 26
Bailey v Hinch [1989] VR 78
Douglas Aerospace v Indistri Engineering Albury [2014] NSWSC 1445
Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd (2018) 98 NSWLR 712; [2018] NSWCA 276
In the matter of Prime City Investments Pty Ltd [2012] NSWSC 1287
Laing O’Rourke Australia Construction Pty Ltd v Monford Group Pty Ltd [2018] NSWSC 491
Pacific General Securities Ltd v Soliman & Sons Pty Ltd (2006) 196 FLR 388; [2006] NSWSC 13
Parkview Constructions Pty Ltd v Total Lifestyle Windows Pty Ltd [2017] NSWSC 194
Petch v Gurney (Inspector of Taxes) [1994] 3 All ER 731
Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd (2017) 95 NSWLR 82; [2017] NSWCA 151
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
QC Communications NSW Pty Ltd v CivComm Pty Ltd [2016] NSWSC 1095
Robowash Pty Ltd v Robowash Finance Pty Ltd [2000] WASCA 409
Tasker v Fullwood [1978] 1 NSWLR 20
Victoria v The Commonwealth (1975) 134 CLR 81; [1975] HCA 39

Category: Principal judgment
Parties: Equa Building Services Pty Ltd (Plaintiff)
KLG Trading Pty Ltd (First Defendant)
Christopher Groves (Second Defendant)
Adjudicate Today Pty Ltd (Third Defendant)
Representation:
Counsel:
D J Byrne (Plaintiff)
D S Weinberger (Defendants)
Solicitors:
HWL Ebsworth (Plaintiff)
Chedid Storey Legal (First Defendant)
King Lawyers Australia…

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: [2021] NSWSC 1674
Decision Date: 17 December 2021

CaseChat Overview and Summary

Equa Building Services Pty Ltd, the plaintiff, filed an action against KLG Trading Pty Ltd, the defendant, in the Supreme Court of New South Wales. The dispute centred around the procedural validity of an adjudication application under the Building and Construction Industry Security of Payment Act 1999 (NSW). Specifically, the case examined whether the plaintiff was served with a proper copy of the adjudication application, and whether the minor discrepancies between the hard copy and the electronic copy provided to the adjudication authority and adjudicator amounted to a denial of procedural fairness or a failure by the adjudicator to perform their statutory function.

The court had to determine whether section 17(5) of the Act required strict compliance or if substantial compliance was sufficient for the service of a copy of the adjudication application. Additionally, the court considered whether the minor differences between the hard copy served on the plaintiff and the electronic copy provided to the adjudication authority and adjudicator were significant enough to deny the plaintiff procedural fairness. It was also necessary to ascertain whether the adjudicator had failed in their duty by not adhering strictly to the requirements of the Act.

In its reasoning, the court held that section 17(5) of the Act did not necessitate strict compliance, and that substantial compliance was sufficient. The court found that the service of the adjudication application, despite the minor discrepancies, was effective and did not deprive the plaintiff of procedural fairness. The court also determined that the adjudicator had performed their statutory function correctly, as the minor differences did not impede the adjudication process. Consequently, the plaintiff's claims were dismissed.

The court ordered that the plaintiff pay the defendant's costs of the proceeding, including the costs of the application to set aside the adjudication. The defendant was also awarded interest on these costs from the date of the adjudication decision until the date of the court's order. The court's decision emphasised the importance of substantial compliance with the statutory requirements for service of documents in adjudication proceedings, while also affirming the adjudicator's discretion in determining the adequacy of the service.

Orders