IWD No 2 Pty Ltd v Level Orange Pty Ltd - [2012] NSWSC 1394

Supreme Court

New South Wales

Medium Neutral Citation: IWD No 2 Pty Ltd v Level Orange Pty Ltd [2012] NSWSC 1394
Hearing dates: 6 & 15 November 2012
Decision date: 20 November 2012
Jurisdiction: Equity Division - Technology and Construction List
Before: Stevenson J
Decision:
Leave to amend granted

Catchwords:
PRACTICE AND PROCEDURE - pleadings - amendment
BUILDING AND CONSTRUCTION - construction contract - determination by adjudicator - natural justice
Legislation Cited: Building and Construction Industry Security of Payment Act 1999
Civil Procedure Act 2005
Uniform Civil Procedure Rules
Cases Cited: Chase Oyster Bar v Hamo Industries [2010] NSWCA 190; (2010) 78 NSWLR 393
Cropper v Smith (1884) 26 Ch D 700
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Estate Property Holdings Pty Ltd v Barclay Mowlem Construction Limited (Unreported, Supreme Court of New South Wales, Court of Appeal, McColl JA, 26 July 2004)
Grosvenor Constructions (NSW) Pty Ltd (in administration) v Musico [2004] NSWSC 344
John Goss Projects Pty Ltd v Leighton Contractors [2006] NSWSC 798; (2006) 66 NSWLR 707
State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2008] NSWSC 399
Category: Interlocutory applications
Parties: IWD No 2 Pty Limited (ACN 109 910 358) (plaintiff)
Level Orange Pty Limited (ACN 133 786 437) (first defendant)
Philip Martin (second defendant)
Adjudicate Today Pty Limited (ACN 109 605 021) (third defendant)
Registrar General of New South Wales (fourth defendant)
Representation: Counsel:
I G B Roberts SC (plaintiff)
M Christie SC with A R R Vincent (first defendant)
Solicitors:
Sparke Helmore (plaintiff)
Salim Rutherford Lawyers (first defendant)

File Number(s): SC 2012/313669
Publication restriction: Nil

Judgment

Introduction

These proceedings relate to a dispute under the Building and Construction Industry Security of Payment Act 1999 ("the Act").

The plaintiff, IWD No 2 Pty Limited ("IWD") seeks a declaration that a determination ("the Determination") made on 27 September 2012 by Mr Philip Martin, an adjudicator appointed under Division 2 of the Act ("the Adjudicator") was: -

(a) made without jurisdiction;

(b) contains jurisdictional errors; and

together with consequential orders.

The Adjudicator determined that there existed between IWD and the first defendant, Level Orange Pty Limited ("Level Orange") a "construction contract" within the meaning of s 4 of the Act, and that IWD was liable to pay Level Orange a "progress payment" for the purpose of s 8 of the Act of $142,449.00.

I heard the matter on 6 November 2012.

In the pleadings at that time, in written submissions received before the hearing, and during oral argument at the hearing, the only basis agitated by IWD to impugn the Determination was IWD's contention that there was no "construction contract" between IWD and Level Orange and that, for that reason, the Adjudicator lacked jurisdiction to make the Determination. Thus, at the hearing, the argument before me focused exclusively on the question of the alleged jurisdictional error of the Adjudicator.

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: [2012] NSWSC 1394
Decision Date: 20 November 2012

CaseChat Overview and Summary

The case of IWD No 2 Pty Ltd v Level Orange Pty Ltd involved a dispute between a contractor and a subcontractor regarding a construction contract. The subcontractor, IWD, sought to amend their statement of claim to include a claim for breach of natural justice in relation to the adjudicator's determination of the contract dispute. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether IWD could amend their statement of claim to include a new claim for breach of natural justice. The court had to consider the principles of pleadings and amendments, as well as the nature of the adjudicator's determination and the scope of judicial review. The court also needed to determine whether the alleged breach of natural justice was a matter that could be reviewed by the court.

The court held that the amendment to the statement of claim was permissible as it did not introduce a new cause of action but rather sought to clarify and expand on the existing claim. The court found that the adjudicator's determination was subject to judicial review for errors of law and breach of natural justice. The court noted that natural justice required the adjudicator to act fairly and without bias, and to give the parties a reasonable opportunity to present their case. The court found that the adjudicator had breached natural justice by failing to provide IWD with an opportunity to respond to a key piece of evidence that had been relied upon by the other party.

The court allowed the amendment to the statement of claim and remitted the matter to the adjudicator for reconsideration in accordance with the court's directions. The court also made orders for costs.

Orders