Hallmarc Construction v Saville - [2014] VSC 491

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL DIVISION

TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST

No. 002389 of 2014

HALLMARC CONSTRUCTION PTY LTD ACN 071 149 758	Plaintiff
v
GREG SAVILLE	First Defendant
and
PHILLIP MARTIN	Second Defendant

---

JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 AUGUST 2014
DATE OF JUDGMENT:	7 OCTOBER 2014
CASE MAY BE CITED AS:	HALLMARC CONSTRUCTION v SAVILLE
MEDIUM NEUTRAL CITATION:	[2014] VSC 491

---

BUILDING CONTRACTS - Building and Construction Industry Security of Payment Act 2002 (Vic) – Adjudication determination – Whether payment claim invalid – Payment claim served out of time under the Act - Jurisdictional error found – Adjudication determination quashed.

ADMINISTRATIVE LAW – Judicial review - Decision of adjudicator appointed under the Building and Construction Industry Security of Payment Act 2002 (Vic) – Whether certiorari should be granted to quash the decision - Payment claim served out of time under the Act - Jurisdictional error found – Declarations as to invalidity made - Adjudication determination quashed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Robins QC with Mr A Rollnik	Kliger Partners
For the First Defendant	Mr J Mattin	Robertson Legal

HIS HONOUR:

This proceeding arises under the Building and Construction Industry Security of Payment Act 2002 (the ‘Act’) in connection with a written construction contract dated 7 February 2013 and entered into between the Plaintiff principal, Hallmarc Construction Pty Ltd (‘Hallmarc’) and the First Defendant sub-contractor (‘Mr Saville’) on 28 February 2013 (the ‘Construction Contract’). Although the Construction Contract contemplated a more formal document being executed at a later time, it is common ground that this did not occur.

The Construction Contract provided for the supply and installation of joinery by Mr Saville to a development being constructed by Hallmarc comprising 134 residential apartments known as Kingston Park Apartments being constructed by the Plaintiff at 1148 Nepean Highway, Highett (the ‘Project’). This was a construction contract to which the Act applied.

This proceeding involves questions as to whether, under the Act:

(a)a payment claim served 21 February 2014 (dated 17 February 2014), purportedly made under the Construction Contract (the ‘First Payment Claim’) was valid;
(b)an Adjudication Determination dated 28 April 2014 purportedly made under the Act by the Second Defendant (‘Mr Martin’), who was the adjudicator, in respect of the First Payment Claim, (the ‘Adjudication Determination’) was unlawful and void;
(c)a payment claim dated 16 May 2014, purportedly made under the Construction Contract (the ‘Second Payment Claim’) was valid; and
(d)whether Mr Saville was entitled to make a further Adjudication Application dated 11 June 2014 in respect of the Second Payment Claim.

Each of the purported Payment Claims (and the first Adjudication Application) was issued in the name of ‘China Sourcing Services’, which is a business name registered as being conducted by a deregistered corporation, and bore the ABN of that same deregistered corporation.

Hallmarc seeks declarations and injunctive relief that:

(a)both the First Payment Claim and the Second Payment Claim are…

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.

Keep reading for free

Create a free CaseChat account to read Hallmarc Construction v Saville and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] VSC 491
Decision Date: 7 OCTOBER 2014

CaseChat Overview and Summary

In the case of Hallmarc Construction v Saville, the dispute involved an adjudication determination under the Building and Construction Industry Security of Payment Act 2002 (Vic). Hallmarc Construction sought to enforce an adjudication determination in its favour against Saville. The central issue was whether the adjudication determination was valid given that the payment claim upon which it was based was served out of time according to the provisions of the Act.

The court was required to decide whether the adjudicator had jurisdiction to make the determination in the face of the late payment claim. The primary legal issue was whether the adjudicator's failure to recognise the invalidity of the late payment claim constituted a jurisdictional error, which would render the adjudication determination void. The court also considered whether the proper remedy was to quash the adjudication determination and declare the payment claim invalid.

The court found that the payment claim was indeed served out of time, and this rendered the claim invalid under the Act. Consequently, the adjudicator had no jurisdiction to make a determination based on an invalid payment claim. The court held that this amounted to a jurisdictional error, and therefore, the adjudication determination was quashed. The court made declarations as to the invalidity of the payment claim and the subsequent adjudication determination. These findings led to the quashing of the adjudicator's decision.

As a result of the court's decision, the adjudication determination was quashed, and declarations were made regarding the invalidity of the payment claim. This effectively nullified the adjudicator's decision and left the matter of the validity of any entitlement to payment unresolved for further adjudication or litigation.

Orders