FIELD DEPLOYMENT SOLUTIONS PTY LTD and SC PROJECTS AUSTRALIA PTY LTD [2014] WASAT 101

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2014] WASAT 101
Act:	CONSTRUCTION CONTRACTS ACT 2004 (WA)
Case No:	CC:816/2014	Heard:	30 JULY 2014
Coram:	MR T CAREY (MEMBER)	Delivered:	21/08/14
No of pages:	24	Judgment Part:	1 of 1
Result:	Review application unsuccessful
Category:	A
PDF Version

Parties:	FIELD DEPLOYMENT SOLUTIONS PTY LTD SC PROJECTS AUSTRALIA PTY LTD SEA TRUCKS AUSTRALIA PTY LTD
Catchwords:	Review of dismissal of adjudication application under Construction Contracts Act 2004 (WA) Dismissed for being out of time Whether review limited to ground upon which adjudicator relied Whether contract concerned a 'construction contract' Whether any 'payment dispute' Contractual terms relating to invoicing and payment for services considered Words and phrases: 'construction contract'; 'construction work'; 'civil works'; 'payment claim'; 'payment dispute'
Legislation:	Construction Contracts Act 2004 (WA), s 3, s 4, s 5(1), s 6, s 6(a), s 26, s 31, s 46, s 46(1), s 46(2) State Administrative Tribunal Act 2004 (WA), s 5, s 27(1), s 27(2), s 27(3), s 29(1)
Case References:	Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217
Orders	The Tribunal will issue an order in the following terms:,1. The review application is dismissed.,2. The decision of the adjudicator, Mr Barry Tonkin, to dismiss the adjudication application is affirmed.
Summary	The applicant sought review of a decision of an adjudicator under the Construction Contracts Act 2004 (WA) to dismiss an application for adjudication of a payment dispute claimed to have arisen under that Act. The adjudicator dismissed the adjudication application on the ground that it had not been made with the period permitted by the Act. ,Although not raised as a ground before the adjudicator, the respondents relied, in addition to the ground upon which the adjudicator's decision was based, upon their contention that the contract concerned was not a 'construction contract'.,The relevant contract was for the supply and support of offroad vehicles for the haulage of fill material, to be used for the reinstatement of a right of way or road along which a gas pipeline had been installed.,In deciding to affirm the adjudicator's decision to dismiss the adjudication application, the Tribunal:,1) rejected an argument that the review application was to be restricted to determining whether or not the adjudicator was correct in his finding on the time limitation ground;,2) concluded that the services provided by the applicant under its contract with the respondents did not satisfy the requirements for a 'construction contract' under the Construction Contracts Act 2004 (WA); and,3) found that because the applicant had failed to comply with a contractual requirement for the giving of a 30 day invoice, there was no payment dispute, rendering the adjudication application premature.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : CONSTRUCTION CONTRACTS ACT 2004 (WA) CITATION : FIELD DEPLOYMENT SOLUTIONS PTY LTD and SC PROJECTS AUSTRALIA PTY LTD [2014] WASAT 101 MEMBER : MR T CAREY (MEMBER) HEARD : 30 JULY…

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: [2014] WASAT 101
Decision Date

CaseChat Overview and Summary

In the State Administrative Tribunal, Field Deployment Solutions Pty Ltd sought review of a decision of an adjudicator under the Construction Contracts Act 2004 (WA) to dismiss an application for adjudication of a payment dispute claimed to have arisen under that Act. The adjudicator dismissed the adjudication application on the basis that it had not been made within the period permitted by the Act. Although not raised as a ground before the adjudicator, the respondents also contended that the contract concerned was not a 'construction contract'. The Tribunal rejected an argument that the review application was to be restricted to determining whether or not the adjudicator was correct in his finding on the time limitation ground. It concluded that the services provided by the applicant under its contract with the respondents did not satisfy the requirements for a 'construction contract' under the Construction Contracts Act 2004 (WA). The Tribunal found that because the applicant had failed to comply with a contractual requirement for the giving of a 30 day invoice, there was no payment dispute, rendering the adjudication application premature. The decision of the adjudicator to dismiss the adjudication application was affirmed. The review application was dismissed.

Orders