Ian Street Developer Pty Ltd v Arrow International Pty Ltd

Link copied
Case Copied 37 min read

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0026

IAN STREET DEVELOPER PTY LTD Applicant
v
ARROW INTERNATIONAL PTY LTD First Respondent
and
JONATHAN SMITH Second Respondent

---

JUDGES: MAXWELL P, McLEISH and NIALL JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 16 October 2018
DATE OF JUDGMENT: 13 November 2018
MEDIUM NEUTRAL CITATION: [2018] VSCA 294
JUDGMENT APPEALED FROM: [2018] VSC 14 (Riordan J)

---

STATUTORY INTERPRETATION – Legislative intention – Non-compliance with statutory requirement – Whether legislature intended non-compliance to invalidate act purportedly done – Construction industry progress payments scheme – Provision for adjudication of amount claimed – Time limit within which adjudication determination must be made – Time limit breached – Whether determination invalid – Express provisions inconsistent with invalidity – Adjudicator’s non-compliance beyond claimant’s control – Invalidity would create inconvenience – Invalidity not intended – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied – Building and Construction Industry Security of Payment Act 2002 ss 22, 23, 28.

---

APPEARANCES: Counsel Solicitors
For the Applicant Mr R Andrew
with Mr N J Phillpott
Noble Lawyers
For the First Respondent Mr C M Caleo QC
with Mr B Reid
Thomson Geer
For the Second Respondent No appearance

MAXWELL P:

Summary

  1. In October 2016, the applicant (‘proprietor’) entered into a construction contract with the first respondent (‘builder’) for the construction of apartments on a site in Noble Park. The dispute between them concerns a progress claim issued by the builder under s 14 of the Building and Construction Industry Security of Payment Act2002 (the ‘Act’).

  1. The object of the Act is

to ensure that any person who undertakes to carry out construction work … under a construction contract is entitled to receive, and is able to recover, progress payments in relation to the carrying out of that work.[1]

To secure that object, the Act confers on the claimant a statutory entitlement to the progress payment, provided that it is claimed in accordance with the procedure laid down in the Act.

[1]The Act s 3(1).

  1. One of the steps in the statutory procedure is the referral of a disputed claim to an adjudicator for a determination.[2]  In the present case, the builder’s payment claim was referred to an adjudicator, who determined that the proprietor was liable to pay the builder $381,446.78, together with interest and 50 per cent of the adjudicator’s fee.[3]

  1. As will appear, the Act specifies a time limit within which an adjudication must be completed. In this case, the adjudication was completed outside that time limit. The question for resolution is whether the adjudicator’s non-compliance with the time limit has the effect that the adjudication decision is void.

  1. The Act is silent on that question.  That being so, the interpreting court must seek to discern the legislature’s intention with respect to the consequences of non-compliance by examining the statutory scheme in…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Ian Street Developer Pty Ltd v Arrow International Pty Ltd 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
[2018] VSCA 294
Decision Date

CaseChat Overview and Summary

The case of Ian Street Developer Pty Ltd v Arrow International Pty Ltd concerned a dispute over the validity of an adjudication determination under the Building and Construction Industry Security of Payment Act 2002. The plaintiff, Ian Street Developer Pty Ltd, sought to recover an amount claimed for progress payments, while the defendant, Arrow International Pty Ltd, challenged the validity of the adjudication determination on the basis that it was made beyond the statutory time limit. The dispute was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the non-compliance with the statutory time limit for making an adjudication determination rendered the determination invalid. The court was required to consider whether the legislature intended such non-compliance to invalidate the act purportedly done, and whether the invalidity would create an unreasonable inconvenience.

The court examined the statutory provisions and the case law, particularly the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority, which established a test for determining whether a statutory provision should be construed as rendering an act invalid when a statutory requirement is not complied with. The court found that the express provisions of the Act were inconsistent with the invalidity of the adjudication determination. The court also considered that the adjudicator's non-compliance with the time limit was beyond the control of the claimant, and that rendering the determination invalid would create an unreasonable inconvenience. The court concluded that the legislature did not intend the invalidity of the adjudication determination, and that the determination was therefore valid.

In light of the above, the court dismissed the defendant's challenge to the validity of the adjudication determination and ordered the defendant to pay the amount determined by the adjudicator, plus interest and costs. The court held that the statutory time limit for making an adjudication determination was not a jurisdictional requirement, and that non-compliance with the time limit did not render the determination invalid. The court also held that the invalidity of the adjudication determination would create an unreasonable inconvenience, and that the legislature did not intend such invalidity. The court's decision provides guidance on the interpretation of statutory provisions that are inconsistent with the invalidity of an act purportedly done, and the circumstances in which such invalidity may be implied.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.