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Gwelo Developments Pty Ltd v Brierty Limited

Gwelo Developments Pty Ltd v Brierty Limited

Case [2014] NTSC 44 7 October 2014

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Gwelo Developments Pty Ltd v Brierty Limited [2014] NTSC 44
PARTIES:GWELO DEVELOPMENTS PTY LTD
(ABN 25 051 085 762)
v
BRIERTY LIMITED
(ABN 65 095 459 448)

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:No 98 of 2014 (21443873)
DELIVERED:  7 October 2014
HEARING DATES:  6 October 2014
JUDGMENT OF:  KELLY J
CATCHWORDS:

CONTRACTS – Building - Construction contracts - Construction Contracts (Security of Payments) Act (NT) – meaning of s 27 – whether the words “an application has already been made” refer only to applications for adjudication that are still on foot - whether s 27 precludes a party to a construction contract from making an application for an adjudication under the Act where the first application has been withdrawn - whether s 27 precludes a party to a construction contract from making an application for an adjudication under the Act where the first application sought adjudication of more than one payment dispute without the consent of the other party – whether the court should refuse to grant a remedy on discretionary grounds
HELD – there is no reason to refuse to grant a remedy on discretionary grounds – s 27 applies to preclude a party from making a further application for adjudication where an application in relation to the same payment dispute has been made at any time in the past – no need for the application to be still on foot – s 27 precludes a part from making application for an adjudication where the applicant has withdrawn the earlier application and where the first application sought adjudication of more than one payment dispute without the consent of the other party
Construction Contracts (Security of Payments) Act (NT) ss 27, 28, 28A, 31, 33, 34(3)(b), 39, 46
Justice and Other Legislation Amendment Act (NT) 2009
Justice Legislation Amendment Act (No 2) (NT) 2007
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; Josephson v Walker (1914) 18 CLR 691, considered
A J Lucas Operations Pty Ltd v Mac-Attack Equipment Hire Pty Ltd [2009] NTCA 4; Alcan Gove Development Pty Ltd v Thiess Pty Ltd [2008] NTSC 12; CIC Insurance Ltd v Bankstown Football Club Ltd [1995-97] 187 CLR 384; K & J Burns Electrical Pty Ltd v GRD Group (NT) Pty Ltd & Anor [2011] NTCA 1; M&P Builders Pty Ltd v Norblast Industrial Solutions Pty Ltd & Anor [2014] NTSC 25, referred to
REPRESENTATION:
Counsel:
Plaintiff:D Robinson QC
Defendant:A Wyvill SC with W Roper
Solicitors:
Plaintiff:Clayton Utz
Defendant:Minter Ellison
Judgment category classification:    B
Judgment ID Number:  KEL14004
Number of pages:  19

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Gwelo Developments Pty Ltd v Brierty Limited [2014] NTSC 44
No. 98 of 2014 (21443873)
BETWEEN:

GWELO DEVELOPMENTS PTY LTD
(ABN 25 051 085 762)

Plaintiff

AND:

BRIERTY LIMITED
(ABN 65 095 459 448)

Defendant

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 7…

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 Gwelo Developments Pty Ltd v Brierty Limited

Details

AGLC: Gwelo Developments Pty Ltd v Brierty Limited [2014] NTSC 44
Case: [2014] NTSC 44
Decision Date: 7 October 2014

CaseChat Overview and Summary

In the matter of Gwelo Developments Pty Ltd v Brierty Limited, the Federal Court of Australia was called upon to interpret the Construction Contracts (Security of Payments) Act (NT). The dispute arose from a construction contract where Gwelo Developments sought to adjudicate a payment dispute under the Act. Brierty Limited, the respondent, argued that Gwelo Developments was precluded from making a second adjudication application under section 27 of the Act. The primary issues before the court were the meaning of section 27 and whether it precluded Gwelo Developments from making a subsequent application for adjudication.

The court examined the language of section 27 to determine its scope and application. The central question was whether the words “an application has already been made” were limited to applications that were still proceeding or if they could refer to any past application, regardless of its status. Additionally, the court considered whether section 27 precluded an applicant from making a further application if the first application was withdrawn or if it involved multiple disputes without the other party's consent. The court found that section 27 was designed to prevent repetitive applications by the same party for the same payment dispute and that it applied regardless of whether the previous application was still active or had been withdrawn.

The court held that section 27 precludes a party from making a further application for adjudication where an application in relation to the same payment dispute has been made at any time in the past, even if it has been withdrawn. The court also ruled that the section precludes an application if the first application involved multiple payment disputes without the consent of the other party. The court concluded that there was no basis to refuse a remedy on discretionary grounds, as the purpose of section 27 was to ensure that parties did not repeatedly pursue the same disputes through adjudication.

The court's decision clarified the operation of section 27 and provided guidance to parties on the permissible scope of adjudication applications under the Act.

Orders