Hanson Construction Materials Pty Ltd v Decmil Australia Pty Ltd - [2024] VSC 361

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST

S ECI 2024 01997

HANSON CONSTRUCTION MATERIALS PTY LTD (ACN 009 679 734)	Plaintiff
v
DECMIL AUSTRALIA PTY LTD (ACN 116 776 991)	First Defendant
-and-
WILLIAM TIMOTHY SULLIVAN	Second Defendant

---

JUDGE:	Stynes J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2024
DATE OF JUDGMENT:	25 June 2024
CASE MAY BE CITED AS:	Hanson Construction Materials Pty Ltd v Decmil Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 361

---

ADMINISTRATIVE LAW – Judicial review – Review of adjudication determination made under the Building and Construction Industry Security of Payment Act 2002 (Vic) – Whether adjudicator erred by taking into account an excluded amount within the meaning of s 10B of the Building and Construction Industry Security of Payment Act 2002 (Vic) in determining the adjudication application – Whether rectification costs for allegedly defective works are a debt due and payable under the terms of the construction contract or a claim for damages within the ambit of s 10B of the Building and Construction Industry Security of Payment Act 2002 (Vic) – Whether payment schedule constitutes a demand for payment under the construction contract – Finding rectification costs an excluded amount – Relief – Severance and partial remitter – Section 23(2B)(b) of the Building and Construction Industry Security of Payment Act 2002 (Vic) – Adjudication determination quashed only to the extent it took into account an excluded amount – Adjudication application remitted to the adjudicator for the purpose of determining the adjudicated amount in accordance with the law - Junemill Limited v FAI General Insurance Co Ltd [1999] 2 Qd R 136, considered – Shape Australia v The Nuance Group [2018] VSC 808, considered – Richard Crookes Construction Pty Ltd v CES Projects (Aus) Pty Ltd (No 2) [2016] NSWSC 1229, distinguished – Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSCA 294, applied – Maxstra Constructions Pty Ltd v Joseph Gilbert & Ors [2013] VSC 243, applied - Metacorp Pty Ltd v Andeco Construction Group Pty Ltd [No 2] [2010] VSC 255; 30 VR 141, applied - SSC Plenty Road Pty Ltd v Construction Engineering (Aust) PtyLtd [2015] VSC 631, applied - Yuanda Vic Pty Ltd v Façade Designs International Pty Ltd [2021] VSCA 44, distinguished.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Michael Roberts KC Alyse Mobrici	Cornwalls
For the First Defendant	Roman Rozenberg	Corrs Chambers Westgarth
For the Second Defendant	No appearance	No appearance

Contents

A.. Introduction

B.. Background

B.1          The Subcontract
B.2          The WTG foundation works
B.3          The Payment Claim
B.4          The Payment Schedule
B.5          The Adjudication

C.. Did the Adjudicator take into account an excluded amount?

C.1          How the issue arises
C.2          The SOP Act
C.3          Submissions
C.4          Consideration

D.. Remedy

E... Orders

HER HONOUR:

A Introduction

The plaintiff, Hanson Construction Materials Pty Ltd (‘Hanson’), seeks judicial review of an adjudication determination…

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 Hanson Construction Materials Pty Ltd v Decmil Australia Pty... 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: [2024] VSC 361
Decision Date: 25 June 2024

CaseChat Overview and Summary

Hanson Construction Materials Pty Ltd brought an application for judicial review against Decmil Australia Pty Ltd, contesting an adjudication determination made under the Building and Construction Industry Security of Payment Act 2002 (Vic). The adjudication pertained to a dispute over the payment of rectification costs for allegedly defective works. The primary legal issues before the court were whether the adjudicator erred by considering an amount that should have been excluded under section 10B of the Act and whether the rectification costs constituted a debt due and payable under the terms of the construction contract or a claim for damages.

The court found that the adjudicator had indeed erred by taking into account an amount that was an excluded debt within the meaning of section 10B of the Act. The court held that the rectification costs were not a debt due and payable under the construction contract but rather a claim for damages. Consequently, these costs fell within the scope of section 10B and should not have been considered by the adjudicator. The court quashed the adjudication determination to the extent it included the excluded amount and remitted the matter back to the adjudicator for re-determination of the adjudicated amount in accordance with the law. The court relied on several precedents to support its decision, including Junemill Limited v FAI General Insurance Co Ltd, Shape Australia v The Nuance Group, Ian Street Developer Pty Ltd v Arrow International Pty Ltd, Maxstra Constructions Pty Ltd v Joseph Gilbert & Ors, Metacorp Pty Ltd v Andeco Construction Group Pty Ltd, SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd, and Yuanda Vic Pty Ltd v Façade Designs International Pty Ltd.

The final orders of the court included quashing the adjudication determination only to the extent it incorporated the excluded amount. The court also ordered that the adjudication application be remitted to the adjudicator for the purpose of determining the adjudicated amount in accordance with the law.

Orders