HAMERSLEY HMS PTY LTD -v- DAVIS [2015] WASC 14

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 14
Case No:	CIV:1890/2014	Heard:	22 DECEMBER 2014
Coram:	BEECH J	Delivered:	16/01/15
No of pages:	38	Judgment Part:	1 of 1
Result:	Application to set aside the adjudication determination dismissed Application for leave to enforce the adjudication determination stayed
Category:	B
PDF Version

Parties:	HAMERSLEY HMS PTY LTD ROGER DAVIS FORGE GROUP CONSTRUCTION PTY LTD (FORMERLY CIMECO PTY LTD (IN LIQ) (RECEIVERS AND MANAGERS APPOINTED) PILBARA LOGISTICS (WA) PTY LTD FORGE GROUP CONSTRUCTION PTY LTD (FORMERLY CIMECO PTYLTD (IN LIQ) (RECEIVERS AND MANAGERS APPOINTED) HAMERSLEY HMS PTY LIMITED
Catchwords:	Administrative law Prerogative writs Whether determination by an adjudicator under the Construction Contract Act 2004 (WA) should be set aside on grounds of jurisdictional error Turns on own facts Bankruptcy and insolvency Company in liquidation Whether company in liquidation should be given leave to enforce adjudication determination under Construction Contract Act 2004 (WA) Respondent asserting counterclaim Relevance and operation of Corporations Act 2001 (Cth), s 553C Building and construction Security of payment legislation Whether adjudication determination should be set aside for jurisdictional error Whether leave to enforce as a judgment should be given
Legislation:	Construction Contracts Act 2004 (WA), s 31, s 43 Corporations Act 2001 (Cth), s 553
Case References:	Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Hamersley Iron Pty Ltd v James [2015] WASC 10 McKay v Commissioner of Main Roads [2013] WASCA 135 Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 MK Builders Pty Ltd v 36 Warrigal Road Pty Ltd [2014] VSC 149 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Stead v State Government Insurance Commission (1986) 161 CLR 141 Stein v Blake [1996] 1 AC 243 Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37; (2011) 244 CLR 239

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : HAMERSLEY HMS PTY LTD -v- DAVIS [2015] WASC 14 CORAM : BEECH J HEARD : 22 DECEMBER 2014 DELIVERED : 16 JANUARY 2015 FILE NO/S : CIV 1890 of 2014 BETWEEN : HAMERSLEY HMS PTY LTD

Applicant

AND

ROGER DAVIS

Respondent

FORGE GROUP CONSTRUCTION PTY LTD (FORMERLY CIMECO PTY LTD (IN LIQ) (RECEIVERS AND MANAGERS APPOINTED)

First Other Party

PILBARA LOGISTICS (WA) PTY LTD

Second Other Party

FILE NO/S : CIV 1778 of 2014 BETWEEN : FORGE GROUP CONSTRUCTION PTY LTD (FORMERLY CIMECO PTY LTD (IN LIQ) (RECEIVERS AND MANAGERS APPOINTED)

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: [2015] WASC 14
Decision Date: 16 JANUARY 2015

CaseChat Overview and Summary

In the case of Hamersley HMS Pty Ltd v Davis, the dispute arose from an adjudication under the Construction Contract Act 2004 (WA). Hamersley HMS Pty Ltd, a company in liquidation, sought to enforce an adjudication determination against Davis. The primary contention was whether the determination, which favoured Hamersley, should be set aside due to a jurisdictional error, and if the company in liquidation should be granted leave to enforce the determination, especially given Davis' assertion of a counterclaim. The case was heard in the Supreme Court of Western Australia.

The court had to determine two key legal issues. The first was whether the adjudicator's determination should be set aside on the grounds of a jurisdictional error. The second issue was whether Hamersley, as a company in liquidation, should be granted leave to enforce the adjudication determination under the Construction Contract Act 2004 (WA). Additionally, the relevance of the Corporations Act 2001 (Cth), section 553C, in the context of a company in liquidation and the enforcement of the determination, was also considered.

The Supreme Court of Western Australia dismissed the application to set aside the adjudication determination, finding no jurisdictional error had been made by the adjudicator. The court also stayed the application for leave to enforce the adjudication determination. The decision recognised the importance of finality in adjudication proceedings and the limited grounds upon which such determinations could be challenged. The court held that the adjudicator's decision was within their jurisdiction and that the procedural fairness of the adjudication process was not compromised.

The final orders of the court were to dismiss the application to set aside the adjudication determination and to stay the application for leave to enforce the adjudication determination. This outcome underscores the importance of adhering to the statutory framework governing construction contract adjudications and the limited scope for judicial intervention in such matters.

Orders

Orders of the court

Application to set aside the adjudication determination dismissed

Application for leave to enforce the adjudication determination stayed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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