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Kembla Coal & Coke v Select Civil

Kembla Coal & Coke v Select Civil

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Case Copied 23 July 2004 50 min read

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CITATION: Kembla Coal & Coke v Select Civil & Ors [2004] NSWSC 628

HEARING DATE(S): 16 June 2004

JUDGMENT DATE:
23 July 2004

JUDGMENT OF: McDougall J at 1

DECISION: See paras [137] and [138] of judgment

CATCHWORDS: BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - whether adjudication determination should be quashed - jurisdictional error - jurisdictional fact - whether adjudicator in jurisdictional error by determining amount due where no reference date to which payment claim related - whether existence of reference date a jurisdictional fact - whether adjudicator erred in law by determining application on basis that amendments to Act applied - whether defects liability period commenced "on" date of practical completion or "from" date of practical completion - meaning of time commencing "on" a day - whether validity of notice affected by illegibility - whether adjudicator erred in law by making allowance in determination for costs of preparation of claim - construction of "for" in "for construction work" in s 4 definition of "claimed amount" - whether adjudicator erred in law by allowing in determination amount for delay costs and delay damages - whether adjudicator erred in law by allowing in determination amount for compound interest - whether relief should be withheld on discretionary grounds when point not taken before adjudicator

LEGISLATION CITED: Supreme Court Act 1970 (NSW)
Building and Construction Industry Security of Payment Act (1999) (NSW)
Building and Construction Industry Security of Payment (Amendment) Act 2002 (NSW)

CASES CITED: Musico v Davenport [2003] NSWSC 977
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
Craig v The State of South Australia (1995) 184 CLR 163
Abacus v Davenport [2003] NSWSC 1027
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Ex parte Mullen; Re Hood (1935) 35 SR (NSW) 289
Emag Constructions Pty Limited v High Rise Concrete Contractors (Aust) Pty Limited [2003] NSWSC 903
Ex parte Toohey's Ltd: Re Butler (1934) 34 SR (NSW) 277
Zoan v Rouamba [2000] 1 WLR 1509
Trow v Ind Coope (West Midlands) Ltd [1967] 2 QB 899
Sidebotham v Holland [1895] 1 QB 378
Jemzone v Trytan [2002] NSWSC 395
Quasar Constructions v Demtech Pty Ltd [2004] NSWSC 116
Walter Construction Group Ltd v CPL (Surry Hills) Pty Ltd [2003] NSWSC 266
Paynter Dixon Constructions Pty Ltd v J F & C G Tilston Pty Ltd [2003] NSWSC 869
State Government Insurance Office (Queensland) v Crittenden (1966) 117 CLR 412
TransGrid v Walter Construction Group [2004] NSWSC 21
Exports Credits Guarantee Department v Universal Oil Products Co [1983] 1 WLR 399
Hungerfords v Walker (1989) 171 CLR 125

PARTIES :
Kembla Coal & Coke Pty Limited (Plaintiff)
Select Civil Pty Ltd (First Defendant)
David Campbell-Williams (Second Defendant)

FILE NUMBER(S): SC 55034/04

COUNSEL: M Christie/J M White (Plaintiff)
D T Miller (First Defendant)
Submitting appearance (Second…

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: [2004] NSWSC 628
Decision Date: 23 July 2004

CaseChat Overview and Summary

In this case, the dispute arose between Kembla Coal & Coke and Select Civil regarding an adjudication determination under the Building and Construction Industry Security of Payment Act 1999. Select Civil had submitted a payment claim to Kembla Coal & Coke, which was subsequently referred to adjudication. The adjudicator determined that Select Civil was entitled to a certain amount of payment. Kembla Coal & Coke sought to quash the adjudication determination, arguing that the adjudicator had made several errors in law and fact.

The central legal issues before the court were whether the adjudicator had erred in determining the amount due where no reference date was provided in the payment claim, whether the existence of a reference date was a jurisdictional fact, and if the adjudicator had correctly applied the amendments to the Act. The court also needed to determine whether the defects liability period commenced "on" or "from" the date of practical completion, whether the validity of the notice was affected by its illegibility, and if the adjudicator had erred in law by including costs of preparation, delay costs, delay damages, and compound interest in the determination. Additionally, the court considered whether relief should be withheld on discretionary grounds when the point was not raised before the adjudicator.

The court found that the adjudicator had indeed made jurisdictional errors in several respects. The court held that the existence of a reference date was a jurisdictional fact and that the adjudicator erred by determining the application without reference to a specific date. The court also determined that the adjudicator incorrectly applied the amendments to the Act. However, the court held that the illegibility of the notice did not affect its validity. The court found that the adjudicator had not erred in law by including costs of preparation, delay costs, delay damages, and compound interest in the determination. The court concluded that relief should not be withheld on discretionary grounds as the point was not taken before the adjudicator.

The court quashed the adjudication determination and remitted the matter back to the adjudicator for reconsideration in light of the court's findings.

Orders