FIELD DEPLOYMENT SOLUTIONS PTY LTD and SC PROJECTS AUSTRALIA PTY LTD AND SEA TRUCKS AUSTRALIA PTY LTD
[2015] WASAT 84
•12 AUGUST 2015
FIELD DEPLOYMENT SOLUTIONS PTY LTD and SC PROJECTS AUSTRALIA PTY LTD AND SEA TRUCKS AUSTRALIA PTY LTD [2015] WASAT 84
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 84 | |
| CONSTRUCTION CONTRACTS ACT 2004 (WA) | |||
| Case No: | CC:620/2015 | 24 JUNE 2015 | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) | 12/08/15 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time dismissed | ||
| B | |||
| PDF Version |
| Parties: | FIELD DEPLOYMENT SOLUTIONS PTY LTD SC PROJECTS AUSTRALIA PTY LTD AND SEA TRUCKS AUSTRALIA PTY LTD |
Catchwords: | Extension of time |
Legislation: | Construction Contracts Act 2004 (WA), s 46(1) |
Case References: | Field Deployment Solutions Pty Ltd v Jones [2015] WASC 136 Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60 Re AnsteeBrook; Ex parte Mt Gibson Mining Limited [2011] WASC 172; 42 WAR 35 SC Projects Australia Pty Ltd and Sea Trucks Australia Pty Ltd and Field Deployment Solutions Pty Ltd [2015] WASAT 69 |
Orders | 1. The applicant's applicaton for an extension of time is dismissed. |
Summary | This matter concerns applications for an extension of time within which to make applications under the Construction Contracts Act 2004 (WA).,It was initially held that the contract between the parties was not a 'construction contract' within the meaning of the Construction Contracts Act 2004. Subsequently, the Supreme Court held that the contract was a construction contract.,Following the Supreme Court's decision, rather than bring an application for an extension of time, the applicant unsuccessfully sought a judicial review of the adjudicators' decisions.,It was only then that the applicant brought applications to extend time.,The Tribunal dismissed the applications on the basis that the time for a 'speedy and informal process' had long since passed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : CONSTRUCTION CONTRACTS ACT 2004 (WA) CITATION : FIELD DEPLOYMENT SOLUTIONS PTY LTD and SC PROJECTS AUSTRALIA PTY LTD AND SEA TRUCKS AUSTRALIA PTY LTD [2015] WASAT 84 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT) HEARD : 24 JUNE 2015 DELIVERED : 12 AUGUST 2015 FILE NO/S : CC 620 of 2015
- CC 621 of 2015
- Applicant
AND
SC PROJECTS AUSTRALIA PTY LTD AND SEA TRUCKS AUSTRALIA PTY LTD
Respondent
Catchwords:
Extension of time
Legislation:
Construction Contracts Act 2004 (WA), s 46(1)
Result:
Application for extension of time dismissed
Summary of Tribunal's decision:
This matter concerns applications for an extension of time within which to make applications under the Construction Contracts Act 2004 (WA).
It was initially held that the contract between the parties was not a 'construction contract' within the meaning of the Construction Contracts Act 2004. Subsequently, the Supreme Court held that the contract was a construction contract.
Following the Supreme Court's decision, rather than bring an application for an extension of time, the applicant unsuccessfully sought a judicial review of the adjudicators' decisions.
It was only then that the applicant brought applications to extend time.
The Tribunal dismissed the applications on the basis that the time for a 'speedy and informal process' had long since passed.
Category: B
Representation:
Counsel:
Applicant : Mr AP Rumsley and Mr PG Clifford
Respondent : Mr TK Porter and Mr CJ Steel
Solicitors:
Applicant : Alan Rumsley Commercial Disputes Lawyer
Respondent : Jones Day
Case(s) referred to in decision(s):
Field Deployment Solutions Pty Ltd v Jones [2015] WASC 136
Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60
Re AnsteeBrook; Ex parte Mt Gibson Mining Limited [2011] WASC 172; 42 WAR 35
SC Projects Australia Pty Ltd and Sea Trucks Australia Pty Ltd and Field Deployment Solutions Pty Ltd [2015] WASAT 69
Introduction
1 This matter concerns a construction contract between Field Deployment Solutions Pty Ltd (FDS) and SC Projects Australia Pty Ltd and Sea Trucks Australia Pty Ltd, an unincorporated joint venture trading as Clough Sea Trucks Joint Venture (Clough JV).
2 On 22 April 2015, FDS made an application under s 46(1) of the Construction Contracts Act 2004 (WA) (CC Act) for orders that:
1. The time fixed under Rule 9 of the State Administrative Rules to commence this application be extended to 24 April 2015.
2. The Reviewable Decision be set aside.
3. The matter be referred back to Mr Jones to make a decision under section 31(2)(b) of the Construction Contracts Act 2004.
3 These reasons consider the application for Order 1 an extension of time.
4 The background is set out in the reasons for decision of Judge Sharp in SC Projects Australia Pty Ltd and Sea Trucks Australia Pty Ltd and Field Deployment Solutions Pty Ltd [2015] WASAT 69 (SC Projects Australia).
5 The two determinations under the CC Act which are the subject of the application are:
(a) the decision of Mr William Mark Jones on 27 October 2014 in which he dismissed FDS' adjudication application pursuant to s 31(2)of the CC Act; and
(b) the decision of Mr Dulal Ghosh on 28 November 2014 in which he dismissed FDS' adjudication application pursuant to s 31(2)(a) of the CC Act.
('the Reviewable Decisions')
7 On 23 February 2015, Clough JV lodged an application to the Tribunal for an extension of time under the CC Act. Clough JV's application for an extension of time was opposed by FDS. That application was considered by Judge Sharp in SC Projects Australia.
8 The factors to be considered in determining whether to grant an extension are set out at [17] of his Honour Judge Sharp's reasons. His Honour dismissed Clough JV's application, essentially on the basis set out at [30] [35]. As his Honour stated at [33], the purposes of the relevant provisions of the CC Act is to provide an expedited process for the adjudication of payment claims.
9 On 13 April 2015, Clough JV filed and served a writ against FDS in the Supreme Court (CIV 1529 of 2015). All of the matters which are the subject of dispute between FDS and Clough JV, including the matters the subject of this application, are capable of being dealt with in the Supreme Court in CIV 1529 of 2015.
10 FDS took a different approach to Clough JV. It did not immediately seek an extension of time but rather, on 20 March 2015, FDS sought judicial review of the Reviewable Decisions in the Supreme Court. On 20 April 2015, Justice Mitchell dismissed the applications (Field Deployment Solutions Pty Ltd v Jones [2015] WASC 136).
11 The primary basis of FDS's submissions in support of its current application for an extension of time was that the purpose of the CC Act is to keep the money flowing from a principal to a contractor. This proposition arises from the decision of Martin J in ReAnsteeBrook; Ex parte Mt Gibson Mining Limited [2011] WASC 172; 42 WAR 35 at [60]. Martin J's statement does not detract from the fact that the purpose of the CC Act is to provide a 'speedy and informal process'. Both parties are required to act expeditiously.
12 In SC Projects Australia, his Honour Judge Sharp found that the time for a 'speedy and informal' process had long since passed. A longer period expired before FDS filed the applications the subject of these applications.
13 In this case, rather than bring an application soon after His Honour Justice Mitchell's decision in Field Deployment, FDS waited until 20 March 2015 (32 days later) to bring any sort of application. That application was not to this Tribunal but to the Supreme Court for judicial review.
14 It does not assist FDS' case that, having resisted Clough JV's application for an extension, it now applies for an extension.
15 Given the long delay by FDS in making an application for an extension of time and following the reasoning of his Honour Judge Sharp, the time for 'a speedy and informal' process had long since passed.
16 FDS' application for an extension of time in each matter is dismissed.
Orders
1. The applicant's application for an extension of time is dismissed.
I certify that this and the preceding [16] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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