Krongold Constructions (Aust) v SR and RS Wales - [2016] VSC 94

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST

S CI 2015 06199

KRONGOLD CONSTRUCTIONS (AUST) PTY LTD		Plaintiff
v
SR & RS WALES PTY LTD		First Defendant
and
NAVID KING	Second Defendant

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 MARCH 2016
DATE OF JUDGMENT:	11 MARCH 2016
CASE MAY BE CITED AS:	KRONGOLD CONSTRUCTIONS (AUST) v SR & RS WALES
MEDIUM NEUTRAL CITATION:	[2016] VSC 94

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ADMINISTRATIVE LAW – Judicial review – Adjudication Determination under Building and Construction Industry Security of Payment Act 2002 (Vic) – Whether Adjudication Determination reviewable for jurisdictional error

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 2002 (Vic) – Payment claim – Whether construction work sufficiently identified – Whether adjudication application made pursuant to the Act

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M A Robins QC with Mr L J Connolly of Counsel	HWL Ebsworth
For the First Defendant	Mr J Gray, Solicitor	Just Law

HIS HONOUR:

By Originating Motion dated 7 December 2015, the Plaintiff, Krongold Constructions (Aust) Pty Ltd (‘Krongold’) commenced proceedings in this Court against the First Defendant, SR & RS Wales Pty Ltd (‘Wales’) and the Second Defendant, Navid King (the ‘Adjudicator’), seeking inter alia, a declaration that the Adjudication Determination of the Adjudicator dated 30 November 2015 (the ‘Adjudication Determination’) is null and void, and an order in the nature of certiorari quashing the Adjudication Determination.

The Adjudicator took no part in the proceeding and was content to abide by the result.

By Summons dated 7 December 2015, Krongold sought an injunction restraining Wales from enforcing or taking action under the Building and Construction Industry Security of Payment Act 2002 (Vic) (the ‘Act’) in relation to the Adjudication Determination.

On 7 December 2015, this Court made orders, inter alia, that:

(a) Until 5 pm on 12 February 2016, Wales is restrained, whether by itself, its servants or agents howsoever, from taking any step to enforce or take action under the Act in relation to the Adjudication Determination;

(b) Until 5 pm on 12 February 2016, the Adjudicator is restrained, whether by itself, its servants or agents howsoever, from taking any step to issue an adjudication certification in relation to the Adjudication Determination; and

(c) The proceeding be listed for a Directions Hearing before the Judge-in-Charge of the Technology, Engineering and Construction List on 12 February 2016.

The trial was conducted on 10 March 2016.

Background facts

Krongold was engaged as head contractor on a project to design and construct a cellar door restaurant facility at a winery located at 882-886 Maroondah Highway, Healesville (the ‘Site’).

On or about 8 September 2014, representatives of Wales met with representatives of Krongold in what was styled as a Post Tender Meeting.

On or about 10 September 2014, Krongold and Wales entered into a written construction contract (the ‘Contract’), pursuant to which Wales was to undertake the entire civil works package forming…

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: [2016] VSC 94
Decision Date: 11 MARCH 2016

CaseChat Overview and Summary

The case involved Krongold Constructions (Aust) as the applicant seeking judicial review against SR and RS Wales. The dispute arose from an adjudication determination under the Building and Construction Industry Security of Payment Act 2002 (Vic), concerning a payment claim related to construction work. The applicant argued that the adjudication determination was reviewable for a jurisdictional error due to alleged inadequacies in the construction work description and the compliance of the adjudication application with the Act.

The central legal issues before the court were whether the construction work was sufficiently identified in the payment claim and whether the adjudication application was made in accordance with the provisions of the Act. Specifically, the court needed to determine if the determination was subject to judicial review for any jurisdictional errors made by the adjudicator.

The court examined the requirements of the Act and found that the construction work description in the payment claim was adequate to satisfy the statutory criteria. The court also considered whether the adjudication application complied with the Act's provisions and found that it did. Consequently, the court held that the adjudication determination was not reviewable for jurisdictional error, as no such error was identified in the proceedings. The applicant's application for judicial review was dismissed.

The final orders of the court were that the applicant's application for judicial review was dismissed, and the adjudication determination remained in place, unaffected by the court's ruling. The court found no grounds for the review of the determination, affirming its validity.

Orders