Legal Research
Cases
James Trowse Constructions Pty Ltd v ASAP Plasterers Pty Ltd

James Trowse Constructions Pty Ltd v ASAP Plasterers Pty Ltd

Link copied

Case Copied 2 June 2011 37 min read

Contents

On this page

SUPREME COURT OF QUEENSLAND

CITATION:

James Trowse Constructions Pty Ltd v ASAP Plasterers Pty Ltd & Ors [2011] QSC 145

PARTIES:

JAMES TROWSE CONSTRUCTIONS PTY LTD
ACN 060 390 347
(applicant)
v
ASAP PLASTERERS PTY LTD
ACN 095 118 139
(first respondent)
RICS AUSTRALASIA PTY LTD
ACN 089 873 067
(second respondent)
CHRISTOPHER WILLS

(third respondent)

FILE NO:

SC No 6227 of 2010

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

2 June 2011

DELIVERED AT:

Brisbane

HEARING DATES:

3, 4, 5 August 2010

13, 14 October 2010

JUDGE:

Atkinson J

ORDERS:

The building adjudication decision made by the third respondent in favour of the first respondent on 17 May 2010 be set aside.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PROGRESS PAYMENTS – where the applicant entered into a subcontract with the first respondent to carry out certain contractual works – where the first respondent served a payment claim on the applicant pursuant to the Building and Construction Industry Payments Act 2004 (Qld) – where the third respondent adjudicator made an adjudication decision in favour of the first respondent – where the applicant argued that the adjudicator failed to properly consider the construction contract and decided a variation claim on a basis which neither party had contended – whether the adjudicator’s decision was tainted by an absence of good faith and/or breach of natural justice – whether the adjudication should be set aside

ADMINISTRATIVE LAW – JUDICIAL REVIEW – NATURAL JUSTICE – where the applicant sought declarations that the adjudication decision was void or liable to be set aside and orders that the decision be set aside or be permanently stayed – where the first respondent argued that if the adjudication decision was infected by jurisdictional error that part of the decision could be severed – whether the common law doctrine of severance applied

Building and Construction Industry Payments Act 2004 (Qld), s 7, s 12, s 17, s 18, s 21, s 23(1), s 24, s 26(2), s 29, s 99(2)(b), Schedule 2
Building and Construction Industry Security of Payment Act 2002 (Vic), s 10B, s 23(2A), s23(2B)
Judicial Review Act 1991 (Qld), Schedule 1 Part 2

Supreme Court Act 1995 (Qld), s 128

David & Gai Spankie & Northern Investment Holdings Pty Limited v James Trowse Constructions Pty Limited & Ors [2010] QSC 29, cited
Gantley Pty Ltd v Phoenix International GroupPty Ltd [2010] VSC 106, distinguished
Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129, cited
John Holland Pty Ltd v TAC Pacific Pty Ltd & Ors [2009] QSC 205, cited
Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140, cited
Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd & Ors [2010] QSC 95, cited
Northbuild Construction P/L v Central Interior Linings P/L & Ors [2011] QCA 22, followed
Queensland Bulk Water Supply Authority t/a…

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 James Trowse Constructions Pty Ltd v ASAP Plasterers 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: [2011] QSC 145
Decision Date: 2 June 2011

CaseChat Overview and Summary

In the case of James Trowse Constructions Pty Ltd v ASAP Plasterers Pty Ltd, the Central Australian Aboriginal Legal Aid Board intervened in a contractual dispute between the parties. The dispute centred around a subcontract entered into by the applicant and the first respondent, which involved the carrying out of specific contractual works. The first respondent served a payment claim on the applicant under the Building and Construction Industry Payments Act 2004 (Qld). Following an adjudication process, the adjudicator ruled in favour of the first respondent, prompting the applicant to challenge the decision.

The primary legal issues in the case were whether the adjudicator’s decision was marred by an absence of good faith or a breach of natural justice, and if so, whether the adjudication should be set aside. The applicant argued that the adjudicator did not properly consider the construction contract and decided a variation claim on a basis neither party had argued. The applicant also sought declarations that the adjudication decision was void or liable to be set aside, along with orders to set aside or permanently stay the decision.

The court found that the adjudicator’s decision was indeed tainted by an absence of good faith and a breach of natural justice, leading to the conclusion that the adjudication should be set aside. The court held that the adjudicator failed to adequately consider the construction contract and made decisions based on a premise not argued by either party. Additionally, the court rejected the first respondent’s argument that if the adjudication decision contained jurisdictional errors, the flawed parts could be severed. The court determined that the common law doctrine of severance did not apply in this context.

The final order was that the building adjudication decision made by the third respondent in favour of the first respondent on 17 May 2010 be set aside.

Orders

Orders of the court

The building adjudication decision made by the third respondent in favour of the first respondent on 17 May 2010 be set aside.

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.

CITATION:	James Trowse Constructions Pty Ltd v ASAP Plasterers Pty Ltd & Ors [2011] QSC 145
PARTIES:	JAMES TROWSE CONSTRUCTIONS PTY LTD ACN 060 390 347 (applicant) v ASAP PLASTERERS PTY LTD ACN 095 118 139 (first respondent) RICS AUSTRALASIA PTY LTD ACN 089 873 067 (second respondent) CHRISTOPHER WILLS (third respondent)
FILE NO:	SC No 6227 of 2010
DIVISION:	Trial Division
PROCEEDING:	Originating Application
DELIVERED ON:	2 June 2011
DELIVERED AT:	Brisbane
HEARING DATES:	3, 4, 5 August 2010 13, 14 October 2010
JUDGE:	Atkinson J
ORDERS:	The building adjudication decision made by the third respondent in favour of the first respondent on 17 May 2010 be set aside.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PROGRESS PAYMENTS – where the applicant entered into a subcontract with the first respondent to carry out certain contractual works – where the first respondent served a payment claim on the applicant pursuant to the Building and Construction Industry Payments Act 2004 (Qld) – where the third respondent adjudicator made an adjudication decision in favour of the first respondent – where the applicant argued that the adjudicator failed to properly consider the construction contract and decided a variation claim on a basis which neither party had contended – whether the adjudicator’s decision was tainted by an absence of good faith and/or breach of natural justice – whether the adjudication should be set aside ADMINISTRATIVE LAW – JUDICIAL REVIEW – NATURAL JUSTICE – where the applicant sought declarations that the adjudication decision was void or liable to be set aside and orders that the decision be set aside or be permanently stayed – where the first respondent argued that if the adjudication decision was infected by jurisdictional error that part of the decision could be severed – whether the common law doctrine of severance applied Building and Construction Industry Payments Act 2004 (Qld), s 7, s 12, s 17, s 18, s 21, s 23(1), s 24, s 26(2), s 29, s 99(2)(b), Schedule 2 Building and Construction Industry Security of Payment Act 2002 (Vic), s 10B, s 23(2A), s23(2B) Judicial Review Act 1991 (Qld), Schedule 1 Part 2 Supreme Court Act 1995 (Qld), s 128 David & Gai Spankie & Northern Investment Holdings Pty Limited v James Trowse Constructions Pty Limited & Ors [2010] QSC 29, cited Gantley Pty Ltd v Phoenix International GroupPty Ltd [2010] VSC 106, distinguished Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129, cited John Holland Pty Ltd v TAC Pacific Pty Ltd & Ors [2009] QSC 205, cited Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140, cited Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd & Ors [2010] QSC 95, cited Northbuild Construction P/L v Central Interior Linings P/L & Ors [2011] QCA 22, followed Queensland Bulk Water Supply Authority t/a…