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Holdmark Developers Pty Ltd v GJ Formwork Pty Ltd

Holdmark Developers Pty Ltd v GJ Formwork Pty Ltd

Case [2004] NSWSC 905 24 September 2004

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CITATION: Holdmark Developers v G J Formwork [2004] NSWSC 905

HEARING DATE(S): 23 September 2004

JUDGMENT DATE:
24 September 2004

JUDGMENT OF: McDougall J at 1

DECISION: See para [61] of judgment

CATCHWORDS: BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - whether adjudication determination should be quashed - jurisdictional error of law - s 14(5) of Act - reference date - final payment claim - whether more than one payment claim made in respect of the one reference date - whether payment claims could only be made during currency of contract - effect of termination or cessation of work - where no contractual provision for the occurrence of reference dates after termination or cessation of work - whether permissible to make a series of payment claims after termination but within relevant limitation period - discretion to withhold relief

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)
Building and Construction Industry Security of Payment Amendment Act 2002

CASES CITED: Jemzone Pty Ltd v Trytan Pty Ltd [2002] NSWSC 395
Isis Projects v Clarence Street Limited [2004] NSWSC 222
John Holland Pty Limited v Cardno MBK (NSW) Pty Limited [2004] NSWSC 258
Musico v Davenport [2003] NSWSC 977
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140

PARTIES :
Holdmark Developers Pty Limited (Plaintiff)
G J Formwork Pty Limited (First Defendant)
LEADR (Second Defendant)
Peter Thomas Sarlos (Third Defendant)

FILE NUMBER(S): SC 55068/04

COUNSEL: M G Rudge SC/D R Sibtain (Plaintiff)
M V Sahade/D A Doyle (Defendants)

SOLICITORS: Corrs Chambers Westgarth (Plaintiff)
The Builders' Lawyer (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

McDOUGALL J

24 September 2004

G J FORMWORK PTY LTD & ORS

JUDGMENT

1 HIS HONOUR: The question in these proceedings was whether an interlocutory injunction granted by Campbell J on 20 September 2004, effectively restraining the first defendant (“GJ”) from enforcing its rights under a determination made by the second defendant (“the adjudicator”) pursuant to the Building and Construction Industry Security of Payment Act 1999 (“the Act”), should be continued. However, it was agreed that I should hear the proceeding on a final basis. The issue, therefore, becomes whether the determination made by the adjudicator should be quashed.

2 To enable the parties to proceed on a final basis, a factual dispute underlying one of the two arguments propounded by the plaintiff (“Holdmark”) was conceded for the purposes of these proceedings in favour of Holdmark.

3 Holdmark relies on two arguments in support of its case that the determination should be quashed. The first proposition is that the payment claim that gave rise to the adjudication application determined by the adjudicator was not authorised by the Act, so that the adjudicator had no jurisdiction to deal with the dispute. The second is that as to one item of the claim, the adjudicator did not value the claim (for materials left on site) as required by the Act.

Background

4…

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 Holdmark Developers Pty Ltd v GJ Formwork Pty Ltd

Details

AGLC: Holdmark Developers Pty Ltd v GJ Formwork Pty Ltd [2004] NSWSC 905
Case: [2004] NSWSC 905
Decision Date: 24 September 2004

CaseChat Overview and Summary

The dispute in Holdmark Developers Pty Ltd v GJ Formwork Pty Ltd concerned the validity of an adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW). GJ Formwork Pty Ltd, the subcontractor, sought to enforce an adjudicator's decision against Holdmark Developers Pty Ltd, the principal contractor, for additional payments claimed under a building contract. Holdmark argued that the adjudicator had erred in law and that the determination should be quashed. The court was required to determine whether the adjudicator's determination contained a jurisdictional error of law, specifically whether the adjudicator erred in considering payment claims made after the contract's termination.

The primary legal issue before the court was whether the adjudicator's decision contained a jurisdictional error of law by accepting and considering payment claims that were made after the termination of the contract. The court had to examine whether the adjudicator correctly interpreted section 14(5) of the Act, which deals with the reference date for payment claims, and whether it was permissible to make a series of payment claims after termination but within the relevant limitation period. Additionally, the court needed to determine if the adjudicator properly exercised the discretion to withhold relief under the Act.

The court found that the adjudicator did not commit a jurisdictional error of law in accepting the payment claims made by GJ Formwork. The court held that the adjudicator correctly interpreted section 14(5) of the Act, which allowed for payment claims to be made even after the termination of the contract, provided they were within the limitation period. The court also concluded that the adjudicator appropriately exercised the discretion to withhold relief, as there was no evidence of bad faith or unfairness in the conduct of GJ Formwork. Consequently, the court dismissed Holdmark's application to quash the adjudicator's determination. Holdmark Developers Pty Ltd was ordered to pay the amount determined by the adjudicator, plus interest, to GJ Formwork Pty Ltd.

Orders