kPa Architects Pty Ltd v Diploma Constructions (WA) Pty Ltd

[2013] WADC 106

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   KPA ARCHITECTS PTY LTD -v- DIPLOMA CONSTRUCTIONS (WA) PTY LTD [2013] WADC 106

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   25 JUNE 2013

DELIVERED          :   4 JULY 2013

FILE NO/S:   CIVO 87 of 2013

MATTER                :IN THE MATTER of an application to seek leave to enforce a determination as a judgment, and enter judgment in the same terms as the determination, under s 43 of the Constructions Contracts Act 2004

BETWEEN:   KPA ARCHITECTS PTY LTD

Applicant

AND

DIPLOMA CONSTRUCTIONS (WA) PTY LTD
Respondent

Catchwords:

Practice and procedure - Application for leave to enforce determination - Principles governing the grant of leave - Onus

Legislation:

Construction Contracts Act 2004

Result:

Leave granted

Representation:

Counsel:

Applicant:     Mr R Edwards

Respondent:     Ms T McAulay

Solicitors:

Applicant:     DLA Piper

Respondent:     HopgoodGanim

Case(s) referred to in judgment(s):

O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2008] WASC 58; (2008) 36 WAR 479

1. DEPUTY REGISTRAR HEWITT:  The parties to this action are respectively the architects and the builder of extensions and renovations to a development known as the Kwinana Hub Shopping Centre.  During the course of the performance of the works a number of disputes which were submitted for adjudication pursuant to the Construction Contracts Act 2004.  As a result of those submissions two adjudications were delivered those being respectively the adjudication dated 23 December 2012 and that dated 1 May 2013.  The approximate total of the two adjudications is $500,000.  By originating motion dated 16 May 2013 the applicant sought orders granting it leave to enforce as a judgment the relevant determinations and entry of judgment in terms of the determinations.  That application is opposed and was argued before me on 25 June 2013.

2. In my view in an application of this kind the onus lies on the defendant to persuade the court that it would not be appropriate to grant the leave which is sought.  In reaching that conclusion I rely on the words of Hall J in O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2008] WASC 58; (2008) 36 WAR 479 [41] in which his Honour said:

   The plaintiff submitted, and the defendants accepted, that the scheme of the Construction Contracts Act was such that on an application under s 43(2) for leave to enforce a determination, it was for a defendant to point to circumstances which justified a refusal to grant leave.  Absent such circumstances, leave will be granted.  I accept that submission.  In my opinion, the statutory scheme gives rise to a predisposition in favour of a grant of leave.  A determination is binding (s 38) and gives rise to a liability to pay (s 39).

3. From that proposition I turn to the facts of this case.  The respondent advances its opposition to the grant of leave on two bases.  The first basis is that the determinations are fundamentally flawed and should not be permitted to be enforced.  The difficulty that I have with that submission is that there was no judicial process initiated by the respondent seeking to have the determinations reviewed.  In an action which was brought by Diploma Construction (WA) Pty Ltd against KPA Architects Pty Ltd a minute of proposed amended statement of claim has been filed which contains within it an attack on the adjudication determinations and seeks a declaration that the adjudicated sum is not due and payable to KPA Architects Pty Ltd.  Although presented as a pleading in a civil action in this court the proposed amendment clearly is an appeal against the adjudications and as such beyond the power of this court.  I understand as much to be conceded by Diploma Construction (WA) Pty Ltd.

4. Absent any valid proceeding in which the determinations may be reviewed I take the view that the provisions of the Act should take effect, namely that the court should recognise that the adjudicated sum is due and payable and I therefore reject any argument which has been advanced to suggest that there are flaws within the adjudication making it inappropriate to grant leave to enforce.  The position might have been quite different had there been a properly constituted appeal through a court of competent jurisdiction but that is not the case here.

5. The next matter which is advanced by the respondent to resist the granting of the application relies on the action to which I have earlier referred, namely Diploma Construction Pty Ltd v KPA Architects Pty Ltd, CIV 403 of 2013.  That is an action was commenced by the filing of a writ on 8 February 2013.  The gist of the action is that because of breaches in the performance of its contractual obligations by the defendant, KPA Architects Pty Ltd delays in the completion of the Kwinana Hub Shopping Centre redevelopment occurred leading to loss and damage which has been quantified in the sum of $287,905.40.  The pleading in my view is so wanting in particulars as to be liable to be struck out.  The only hint of the basis of the claim is contained in the particulars to pars 7 and 10 in which it is pleaded:

   The Defendant produced architectural plans showing all the new structural works to separable portion #3 and separable portion # … being out of position by approximately 350 mm … .

   The Plaintiff has incurred the following costs as a consequence of the delays incurred as a result of the design dimension discrepancies caused by the defendant.

6. Nothing is pleaded to indicate the way in which the deficiency led to delay.

7. The respondent contends that it would be a more satisfactory process to enable all the matters in issue between the applicant and the respondent to be resolved in the context of Action 403 of 2013 and that the desirable outcome of finality between the parties would be achieved by allowing that action to achieve that outcome.  I have a number of difficulties with the proposition.  The first difficulty is that the action to which I have referred has not progressed satisfactorily.  In my opinion Diploma Constructions has failed to satisfactorily plead its case and as I understand submissions from the bar table counsel for the company is of the view that a complete substitution of the statement of claim would be appropriate.  In my view a complete substitution might not be necessary but it would certainly be a tidier way to deal with the deficiencies which I perceive in the statement of claim as it is presently framed.

8. Another matter is the fact that Diploma's claim is substantially less than the amount of the adjudication.  Additionally, I am extremely sceptical of the costs which are claimed in the action and no explanation is given as to why the individuals identified whose wages are claimed for a six week period were in fact required to expend that extra time and work.  Nor is it explained what they were doing during that time.

9. In summary therefore I conclude:

   (1)In the absence of an appeal an attack on the two adjudications the subject of the application is irrelevant and not a basis for refusing leave.

   (2)The action which has been commenced by the respondent to this application has not proceeded satisfactorily, is not pleaded satisfactorily, and is likely to be a considerable time before it reaches any kind of a conclusion.

   (3)The amount claimed in the writ, which is unlikely to be conservatively calculated, is considerably less than the amount of the adjudications sought to be enforced.

10. For these reasons I consider that I should make an order in terms of the originating summons which I shall do.