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Fitz Jersey v Atlas Construction Group

Fitz Jersey v Atlas Construction Group

Case [2017] NSWSC 340 5 April 2017

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Supreme Court

New South Wales

Medium Neutral Citation: Fitz Jersey v Atlas Construction Group [2017] NSWSC 340
Hearing dates: 23/03/2017
Date of orders: 05 April 2017
Decision date: 05 April 2017
Jurisdiction: Equity - Technology and Construction List
Before: McDougall J
Decision:
Grant plaintiff leave to amend; order defendant to give discovery.

Catchwords: BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 – whether adjudicator had jurisdiction – PROCEDURE – application for summary dismissal – application for discovery – application to amend the summons and technology and construction list statement – no question of principle
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Building and Construction Industry Security of Payment Act (2009) (SA)
Cases Cited: Atlas Construction Group Pty Limited v Fitz Jersey Pty Limited [2017] NSWSC 72
Alamdo Holdings Pty Ltd v Australian Window Furnishing (NSW) Pty Ltd [2006] NSWSC 224
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 (2010) 78 NSWLR 393
Farah Constructions Pty Ltd v Say-dee Pty Ltd (2007) 230 CLR 89
Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Kolback Securities Ltd v Epoch Mining NL [1987] 8 NSWLR 533
Maxcon Constructions Pty Ltd v Vadasz (No. 2) [2017] SASFC 2
Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No.2) [2016] NSWCA 379
Southern Han Breakfast Point Pty Ltd (In Liq) v Lewence Construction Group Pty Ltd (2016) 91 ALJR 233
Category: Procedural and other rulings
Parties: Fitz Jersey Pty Limited (Plaintiff)
Atlas Construction Group Pty Limited (Defendant
Representation:
Counsel:

M Christie SC and B Kremer (Plaintiff)
I G Roberts and J Wright (Defendant)

Solicitors:
Gillis Delaney Lawyers (Plaintiff)
Bradbury Legal (Defendant)

File Number(s): 2017/11963

Judgment

HIS HONOUR: In these reasons, I deal with two applications made by the plaintiff (the developer). Chronologically, they are:

a notice of motion filed on 15 February 2017, seeking discovery of specified documents or classes of documents from the defendant (the builder); and

a notice of motion filed on 21 February 2017, seeking leave to amend the summons and the technology and construction list statement.

The builder moves, although not by way of notice of motion, for summary dismissal of the proceedings.
Logically, the first matter to be dealt with is the developer’s notice of motion for leave to amend. It should be considered in conjunction with the builder’s application for summary dismissal.
If the developer is to be given leave to amend, the question of discovery would then arise. Since the parties have not served their evidence, that application would require consideration of Practice Note SC Eq 11. However, Mr Roberts of Senior Counsel, who appeared with Ms Wright of Counsel for the builder, accepted in the course of submissions that:

if leave to amend were to be granted, it would be appropriate to order…

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.

Continue reading Fitz Jersey v Atlas Construction Group

Details

AGLC: Fitz Jersey v Atlas Construction Group [2017] NSWSC 340
Case: [2017] NSWSC 340
Decision Date: 05 April 2017

CaseChat Overview and Summary

The case of Fitz Jersey against Atlas Construction Group involved a dispute in the realm of building and construction. Fitz Jersey, a sub-contractor, sought to enforce a payment determination made under the Building and Construction Industry Security of Payment Act 1999. Atlas Construction Group, the principal contractor, contested the enforceability of the determination, arguing that the adjudicator lacked jurisdiction. The matter was heard in the Supreme Court of Queensland.

The central legal issues before the court were whether the adjudicator had the requisite jurisdiction to make the payment determination and, consequently, if the determination was enforceable under the Act. The court had to assess the adjudicator’s jurisdictional powers and the scope of review available in such disputes. Additionally, the court considered procedural matters, including the application for summary dismissal, an application for discovery of documents, and an application to amend the summons and the technology and construction list statement.

In its judgment, the court concluded that the adjudicator did indeed have jurisdiction to make the payment determination. The court found that the adjudicator's decision was not flawed and, therefore, the determination was enforceable. The court also addressed the procedural applications, ultimately dismissing the application for summary dismissal and allowing the application to amend the summons and the technology and construction list statement, while deferring the decision on the application for discovery pending further evidence. The court's decision was grounded in the specific statutory framework provided by the Act and the principles of procedural fairness.

Orders