KUREDALE PTY LTD -v- JOHN HOLLAND PTY LTD [2015] WADC 61

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WADC 61
Case No:	CIVO:200/2014	Heard:	13 MAY 2015
Coram:	KEEN DCJ	Delivered:	21/05/15
Location:	PERTH
No of pages:	30	Judgment Part:	1 of 1
Result:	Application allowed
PDF Version

Parties:	KUREDALE PTY LTD JOHN HOLLAND PTY LTD
Catchwords:	Building and construction Application for leave to enforce determination under Construction Contracts Act 2004 as a judgment Exercise of discretion Dispute as to whether amount found under determination paid Whether abuse of process
Legislation:	Construction Contracts Act 2004
Case References:	Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91 Diploma Construction Pty Ltd v Windslow Corporation Ltd [2005] WASC 74 Hamersley Iron Pty Ltd v James [2015] WASC 10 House v The King (1936) 55 CLR 499 O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2008] WASC 58; (2008) 36 WAR 479 Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4 Thiess Pty Ltd v MCC Mining (WA) Pty Ltd [2011] WASC 80

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : KUREDALE PTY LTD -v- JOHN HOLLAND PTY LTD [2015] WADC 61 CORAM : KEEN DCJ HEARD : 13 MAY 2015 DELIVERED : 21 MAY 2015 FILE NO/S : CIVO 200 of 2014 BETWEEN : KUREDALE PTY LTD

Applicant

AND

JOHN HOLLAND PTY LTD

Respondent

Catchwords:

Building and construction - Application for leave to enforce determination under Construction Contracts Act 2004 as a judgment - Exercise of discretion - Dispute as to whether amount found under determination paid - Whether abuse of process

Legislation:

Construction Contracts Act 2004

Result:

Application allowed

Representation:

Counsel:

Applicant : Mr G E Nairn

Respondent : Mr J Healy

Solicitors:

Applicant : Lavan Legal

Respondent : Corrs Chambers Westgarth

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

Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91
Diploma Construction Pty Ltd v Windslow Corporation Ltd [2005] WASC 74
Hamersley Iron Pty Ltd v James [2015] WASC 10
House v The King (1936) 55 CLR 499
O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2008] WASC 58; (2008) 36 WAR 479
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4
Thiess Pty Ltd v MCC Mining (WA) Pty Ltd [2011] WASC 80

1 KEEN DCJ: The applicant in this matter seeks leave to enforce the determination (the determination) of an adjudicator, Michael Charteris, dated 24 September 2014 pursuant to s 43 Construction Contracts Act 2004 (CC Act) and for judgment for the sum of $413,499.60 and interest thereon being the balance said to be due under the determination. The proceedings were commenced by way of originating summons on 15 December 2014. The summons is supported and opposed by various affidavits to which I will come shortly. One of those affidavits in opposition to the application is that sworn by Anthony Nahn Gale on 2 February 2015. That affidavit…

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: [2015] WADC 61
Decision Date: 21 MAY 2015

CaseChat Overview and Summary

The case of Kuredale Pty Ltd versus John Holland Pty Ltd involved a dispute within the construction industry. Kuredale, a contractor, sought to enforce a determination made under the Construction Contracts Act 2004 against John Holland, a principal. The determination had ordered John Holland to pay Kuredale a sum of money, and Kuredale sought to enforce this determination as a judgment. The primary legal issue before the court was whether the application for leave to enforce the determination as a judgment should be granted, and whether there was an abuse of process in the way Kuredale sought to enforce the determination.

The court considered the discretion available under the Construction Contracts Act 2004 to enforce a determination as a judgment. It examined whether the amount determined had been paid and whether Kuredale's application was an abuse of the legal process. The court needed to balance the need to ensure that determinations under the Act were enforceable and that parties were not unjustly deprived of their rights, with the requirement to prevent abuse of the legal process. The court found that the amount determined had not been paid and that there was no evidence of abuse of process. Therefore, the court exercised its discretion to grant leave for the determination to be enforced as a judgment.

Consequently, the court allowed the application for leave to enforce the determination as a judgment. This decision provided clarity on the enforceability of determinations made under the Construction Contracts Act 2004, affirming that they can be enforced as judgments in appropriate circumstances. The court's decision also highlighted the importance of ensuring that such applications are not used to abuse the legal process.

Orders

Orders of the court

Application allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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