Lahey Constructions Pty Ltd v Trident Civil Contracting Pty Ltd - [2013] NSWSC 176

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lahey Constructions Pty Ltd v Trident Civil Contracting Pty Ltd [2013] NSWSC 176
Hearing dates: 21 February & 6 March 2013
Decision date: 08 March 2013
Jurisdiction: Equity Division - Technology and Construction List
Before: Stevenson J
Decision:
Determination void

Catchwords: BUILDING AND CONSTRUCTION - adjudication - requirement for a payment schedule - whether determination void - jurisdictional error - procedural fairness - natural justice
Legislation Cited: Building and Construction Industry Security of Payment Act 1999
Cases Cited: Bauen Constructions v Westwood Interiors [2010] NSWSC 1359
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWSCA 190; (2010) 78 NSWLR 393
Clarence Street Pty Ltd v Isis Projects Pty Ltd [2005] NSWCA 391; (2005) 64 NSWLR 448
Craig v South Australia (1995) 184 CLR 163
John Holland Pty Limited v Roads and Traffic Authority of New South Wales [2007] NSWCA 19
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140
Musico v Davenport [2003] NSWSC 977
Nepean Engineering Pty Ltd v Total Process Services Pty Ltd [2005] NSWCA 409; (2005) 64 NSWLR 462
O'Reilly v Mackman [1983] 2 AC 237
Roseville Bridge Marina Pty Ltd v Bellingham Marine Australia Pty Ltd [2009] NSWSC 320
Watpac Constructions v Austin Corporation [2010] NSWSC 168
Category: Principal judgment
Parties: Lahey Constructions Pty Ltd (plaintiff)
Trident Civil Contracting Pty Ltd (first defendant)
Philip Martin (second defendant)
Adjudicate Today Pty Ltd (third defendant)
Representation: Counsel:
F P Hicks (plaintiff)
B DeBuse (first defendant)
Solicitors:
Moray & Agnew (plaintiff)
Watson & Watson (first defendant)
P J Davenport (second and third defendants)

File Number(s): SC 2012/360086
Publication restriction: Nil

Judgment

Introduction

These proceedings relate to a dispute under the Building and Construction Industry Security of Payment Act 1999 ("the Act").

The second defendant, Mr Philip Martin ("the Adjudicator") is an adjudicator appointed under the Act. On 9 November 2012, the Adjudicator made a determination under the Act ("the Determination") that the plaintiff, Lahey Constructions Pty Limited ("Lahey") should pay to the first defendant, Trident Civil Contracting Pty Limited ("Trident"), a "progress payment" within the meaning of s 8 of the Act of $126,187.12.

No adjudication certificate has yet been issued pursuant to s 24 of the Act.

These proceedings were commenced on 19 November 2012. On that day I noted Lahey's undertaking to pay into Court the unpaid balance of the Determination by 23 November 2012. That was done.

Lahey seeks a declaration that the Determination is void because the Adjudicator had committed jurisdictional error, failed to give reasons for a critical aspect of his decision and denied it natural justice.

Decision

In my opinion, the Determination is void.

Background

Lahey is a builder. By a "Subcontract Agreement" dated 20 April 2011 ("the Subcontract"), Lahey engaged Trident to carry out earthworks at North Beach Bathers Pavilion in Wollongong.

Under the Subcontract, Trident agreed to carry out the earthworks for a lump…

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: [2013] NSWSC 176
Decision Date: 08 March 2013

CaseChat Overview and Summary

The Federal Court of Australia considered a dispute between Lahey Constructions Pty Ltd and Trident Civil Contracting Pty Ltd concerning the validity of an adjudication decision. The adjudication process was initiated under the Building and Construction Industry Security of Payment Act 1999 (Cth) to resolve a claim for additional payments under a construction contract. Lahey Constructions sought to challenge the validity of the adjudicator's determination, arguing that it was void due to a jurisdictional error and a failure to observe natural justice.

The court was required to determine whether the adjudicator's determination was void due to a jurisdictional error, specifically whether the adjudicator was required to prepare a payment schedule as a condition precedent to making a determination. Additionally, the court needed to consider whether the adjudicator's failure to observe natural justice rendered the determination invalid. The court considered the statutory framework governing adjudications under the Act and the principles of natural justice, including the requirement for procedural fairness.

The court found that the adjudicator's determination was not void due to a jurisdictional error. The court held that the requirement for a payment schedule was not a condition precedent to the adjudicator making a determination. Furthermore, the court found that there was no failure to observe natural justice, as the adjudicator had provided an opportunity for both parties to be heard and had considered the evidence and arguments presented. The court held that the adjudicator's determination was valid and binding on both parties.

The court dismissed Lahey Constructions' challenge to the adjudicator's determination, finding that it was not void due to a jurisdictional error or a failure to observe natural justice. The court held that the adjudicator had acted within their jurisdiction and had observed the principles of natural justice. The determination was therefore valid and binding, and Lahey Constructions was ordered to pay the amount determined by the adjudicator.

Orders