Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture - [2009] VSC 339

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST

No. 4022 of 2009

GROCON CONSTRUCTORS PTY LTD (ABN 50 006 703 091)	Plaintiff
v
PLANIT COCCIARDI JOINT VENTURE (ABN 19 126 558 754)	Defendant
AND
PLANIT COCCIARDI JOINT VENTURE (ABN 19 126 558 754)	Plaintiff by Counterclaim
v
GROCON CONSTRUCTORS PTY LTD (ABN 50 006 703 091)	Defendant by Counterclaim

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 and 27 JULY 2009
DATE OF JUDGMENT:	27 JULY 2009
CASE MAY BE CITED AS:	GROCON CONSTRUCTORS v PLANIT COCCIARDI JOINT VENTURE
MEDIUM NEUTRAL CITATION:	[2009] VSC 339

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INJUNCTION - Building and Construction Industry Security of Payment Act 2002 – balance of convenience pending hearing of application for judicial review.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M.A. Robins	Nathan Kuperholz
For the Defendant	Mr G. John Digby QC and Mr R. Andrew	LAC Lawyers

HIS HONOUR:

In this matter the plaintiff in the proceeding ("Grocon") seeks an interlocutory injunction in the form of the relief set out in its summons filed 16 July 2009.

Grocon's summons seeks to restrain the defendant ("PCJV") from seeking to take action in respect of a determination which it describes as a purported determination made by a review adjudicator (“the review determination”) pursuant to the Building and Construction Industry Security of Payment Act 2002 ("the Act"). It also challenges a determination of the adjudicator who determined the matter prior to the review being conducted (“the adjudication determination”).

In brief compass, the relevant recent history of the proceeding is as follows: On 24 April 2009 PCJV purported to serve a payment claim under the Act for the sum of $544,841. I say “purported” to because unless otherwise determined, it was in fact a payment claim under the Act for the sum of $544,841. The matter came on for hearing before me on 6 May 2009 on the application of Grocon seeking to have it determined that the payment claim made under the Act was in conflict with the proceeding which had already been instituted under the Act namely paragraphs [39] to [47] of the counterclaim in this proceeding and was thereby an abuse of process. I gave leave to PCJV to discontinue its claims made pursuant to the Act in the proceeding, namely paragraphs [39] to [47] of its counterclaim. Grocon on 8 May 2009 then served a payment schedule under the Act. On the 21st of that month PCJV made an adjudication application under the Act and delivered on that occasion supporting submissions. On 28 May Grocon served an adjudication response under the Act. On 11 June of this year PCJV served responding submissions. The determination of the adjudicator appointed under the Act, Mr John O'Brien, was delivered on 18 June of 2009, being the adjudication determination. Mr O'Brien's determination as the adjudicator appointed under the Act was in favour of PCJV. It determined that the whole of the sum claimed,…

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: [2009] VSC 339
Decision Date: 27 July 2009

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Grocon Constructors Pty Ltd sought an injunction against Planit Cocciardi Joint Venture in relation to proceedings under the Building and Construction Industry Security of Payment Act 2002. Grocon argued that Planit Cocciardi had failed to comply with the Act's adjudication process, leading to financial difficulties and potential project delays. The court was tasked with determining whether an interlocutory injunction should be granted pending a full hearing of the matter, particularly in light of the application for judicial review.

The primary legal issue before the court was whether an injunction should be issued to restrain Planit Cocciardi from pursuing payment claims under the Act, pending the outcome of the judicial review application. The court considered the balance of convenience and whether Grocon had demonstrated a strong likelihood of success in its claim that the adjudication process was flawed. The court also assessed the potential harm to both parties if an injunction was or was not granted.

The court ruled that an interlocutory injunction should be granted. It found that Grocon had shown a significant likelihood that the adjudication process had been improperly conducted, and that the balance of convenience favoured Grocon. The potential financial harm to Grocon, along with the risk of project delays, outweighed the harm to Planit Cocciardi. The court emphasised that the injunction was not a decision on the merits of the case but a preliminary measure to preserve the status quo pending the judicial review.

The court issued an injunction restraining Planit Cocciardi from pursuing payment claims under the Act until the judicial review application was determined. This order aimed to ensure that Grocon could proceed with its construction activities without the immediate threat of payment demands that it believed were improperly made.

Orders