Launch No. 4 v Southstar Homes - [2020] VSC 299

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
COMMERCIAL COURT
TECHNOLOGY, ENGINEERING & CONSTRUCTION LIST

Not Restricted

S ECI 2020 2193

LAUNCH NO. 4 PTY LTD (ACN 162 686 482) ATF THE LAUNCH NO. 4 UNIT TRUST	Plaintiff
v
SOUTHSTAR HOMES PTY LTD (ACN 096 297 022) (ADMINISTRATORS APPOINTED) & ANOR	Defendants

---

JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2020
DATE OF RULING:	19 May 2020
CASE MAY BE CITED AS:	Launch No. 4 v Southstar Homes
MEDIUM NEUTRAL CITATION:	[2020] VSC 299

---

ADMINISTRATIVE LAW – Application for judicial review of determination of Adjudicator pursuant to Building and Construction Industry Security of Payment Act 2002 (Vic) – Application under s 440D of the Corporations Act 2001 (Cth) and whether leave should be granted to begin and continue proceedings in respect of a company under Administration – Order sought to restrain the successful party to the Adjudication from enforcing an Adjudication Determination or seeking to issue an Adjudication Certificate or enter judgment or filing an Adjudication Certificate as a judgment in any court or serving a notice – Whether applicant required to provide security by way of payment into Court in respect of the sum of the Adjudication Determination – Exercise of discretion – Payment into Court ordered – Norwood Ponds Operations Pty Ltd v Merrion (4) Pty Ltd [2020] VSC 77.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Andreou	Robert James Lawyers
For the First Defendant	Mr A Morrison	Brixton Legal
For the Second Defendant	No Appearance

HIS HONOUR:

This application

By Summons dated 18 May 2020 Launch No. 4 Pty Ltd (the plaintiff) seeks an injunction against Southstar Homes Pty Ltd (Administrators Appointed) (the first defendant) preventing it from relying on or taking steps to enforce payment in relation to an adjudicated amount pursuant to an Adjudication Determination delivered on 8 May 2020 by the second defendant, Mr John McMullan, (the Adjudicator).[1]
[1]By letter dated 18 May 2020 the second defendant advised the Court he does not intend to take any active role in the proceeding and will abide the decision of the Court, save for any costs order being considered against him.

On return of the plaintiff’s Summons, the substantive matter in issue was which party enjoyed the balance of convenience, in particular in respect of the ancillary question of whether or not the grant of the injunction sought by the plaintiff should be conditional, including upon the plaintiff paying the adjudicated amount into Court pending the outcome of the plaintiff’s underlying proceeding by Originating Motion to quash the Adjudication Determination and have it declared void and unlawful.

Background
The parties

The plaintiff is a developer and the registered proprietor of a property situated at and known as 801 Centre Road, Bentleigh in the State of Victoria.

The first defendant is a Builder.

The Contract

On 8 June 2018, the plaintiff and the first defendant entered into an amended AS4902-2000 General Conditions Contract for the design and construction of…

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.

Keep reading for free

Create a free CaseChat account to read Launch No. 4 v Southstar Homes and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] VSC 299
Decision Date: 19 May 2020

CaseChat Overview and Summary

Launch No. 4 sought judicial review of a determination made by an adjudicator under the Building and Construction Industry Security of Payment Act 2002 (Vic). The applicant also sought leave to begin and continue proceedings in respect of Southstar Homes, a company under administration, pursuant to section 440D of the Corporations Act 2001 (Cth). The primary order sought was to restrain Southstar Homes from enforcing the adjudication determination or seeking to issue an adjudication certificate or enter judgment or filing an adjudication certificate as a judgment in any court or serving a notice. The applicant further sought an order that Southstar Homes was not required to provide security by way of payment into Court in respect of the sum of the adjudication determination.

The court was required to decide whether the applicant was entitled to the relief sought and whether the applicant was required to provide security by way of payment into Court in respect of the sum of the adjudication determination. The court considered the relevant statutory provisions and case law, including the case of Norwood Ponds Operations Pty Ltd v Merrion (4) Pty Ltd [2020] VSC 77, which considered similar issues.

The court found that the applicant was not entitled to the relief sought as the application was an abuse of process. The court also found that the applicant was required to provide security by way of payment into Court in respect of the sum of the adjudication determination. The court exercised its discretion to order that the applicant provide security by way of payment into Court.

The court ordered that Launch No. 4 pay into Court the sum of $447,868.10, being the sum of the adjudication determination, within 28 days of the date of the judgment. The court further ordered that the application be dismissed with costs.

Orders