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John Goss Projects Pty Ltd v Leighton Contractors

John Goss Projects Pty Ltd v Leighton Contractors

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Case Copied 14 August 2006 39 min read

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Reported Decision:
66 NSWLR 707

New South Wales

Supreme Court

CITATION: John Goss Projects v Leighton Contractors & Anor [2006] NSWSC 798
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 28/07/2006

JUDGMENT DATE :
14 August 2006

JURISDICTION: Technology & Construction List

JUDGMENT OF: McDougall J at [1]

DECISION: See para [86] of judgment

CATCHWORDS: BUILDING AND CONSTRUCTION - whether one adjudicator valued construction work - whether subsequent adjudicator bound by s 22(4) of the Building and Construction Industry Security of Payment Act 1999 to value that work accordingly - where adjudicator decided that obiter dicta in Supreme Court judgment were incorrect - where this issue not advanced by either party - where no notice to parties - whether material to adjudicator's determination - whether parties denied natural justice - whether adjudicator lacked good faith - application of Brodyn v Davenport [2004] NSWSC 394 - whether bringing the same claim in consecutive adjudications is abuse of process - where party likely to raise in future adjudication issue of notice precondition on the bringing of claims - whether declaration has utility - whether clause conflicts with s 13(4) of the Act - whether clause void by operation of s 34 of the Act

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

CASES CITED: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421
Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385
Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129
Minister for Commerce v Contrax Plumbing [2004] NSWSC 823
Musico v Davenport [2003] NSWSC 977
Procorp Civil Pty Ltd v Napoli Excavations & Contracting Pty Ltd [2006] NSWSC 205
Rothnere v Quasar [2004] NSWSC 1151

PARTIES: John Goss Projects Pty Limited (Plaintiff)
Leighton Contractors Pty Limited (First Defendant)
Philip Davenport (Second Defendant)

FILE NUMBER(S): SC 55050/06

COUNSEL: M Christie/M A Izzo (Plaintiff)
M G Rudge SC/R J Cheney (First Defendant)
Submitting Appearance (Second Defendant)

SOLICITORS: Harris Freidman Hyde Page (Plaintiff)
Rivlin & Associates (First Defendant)

JOHN GOSS PROJECTS v LEIGHTON CONTRACTORS & ANOR [2006] NSWSC 798

INDEX TO JUDGMENT

14 August 2006

Para

The first adjudication 5

Mr Dutton’s determination 7

The s 22(4) issue 10

The second adjudication 15

Mr Davenport’s determination 19

Denial of natural justice 24

Want of good faith 56

Abuse of process 60

Clause 45 66

Threshold point 69

The competing submissions 73

Decision 75

Conclusions and orders 84

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

McDOUGALL J

Monday 14 August 2006

55050/06 JOHN GOSS PROJECTS PTY LTD v LEIGHTON
CONTRACTORS PTY LIMITED & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff (John Goss) and the first defendant (Leighton) were parties to a design and construct contract dated 31 July 2003…

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: [2006] NSWSC 798
Decision Date: 14 August 2006

CaseChat Overview and Summary

The matter of John Goss Projects Pty Ltd v Leighton Contractors concerned a dispute over the valuation of construction work within the framework of the Building and Construction Industry Security of Payment Act 1999. The primary contention was whether a subsequent adjudicator was bound by the valuation of the same construction work as determined by an earlier adjudicator under section 22(4) of the Act. The first adjudicator had valued the work in a particular manner, and the second adjudicator, upon reviewing the matter, determined that certain obiter dicta in a Supreme Court judgment were incorrect. However, this particular issue was neither advanced by either party nor notified to them. The respondents argued that this constituted a breach of natural justice, a lack of good faith, and an abuse of process under the principles set forth in Brodyn v Davenport.

The court examined whether the lack of notice to the parties about the specific issue of obiter dicta in the Supreme Court judgment was material to the adjudicator's determination. It was held that the obiter dicta were not a material consideration in the adjudicator's decision. The court further found that there was no denial of natural justice or lack of good faith as the issue in question was not critical to the outcome. The court also considered whether bringing the same claim in consecutive adjudications constituted an abuse of process, particularly in light of the possibility that the issue might be raised again in future adjudications. The court concluded that the declaration sought by the respondents had little utility and did not conflict with section 13(4) of the Act, nor was it void under section 34 of the Act.

Orders