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Lendlease Engineering Pty Ltd v Timecon Pty Ltd

Lendlease Engineering Pty Ltd v Timecon Pty Ltd

Case [2019] NSWSC 685 12 June 2019

Contract Formation

Breach of Contract

Admissibility of Evidence

Construction Law

Contract Law

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Supreme Court

New South Wales

Medium Neutral Citation: Lendlease Engineering Pty Ltd v Timecon Pty Ltd [2019] NSWSC 685
Hearing dates: 22 to 24 May 2019
Decision date: 12 June 2019
Jurisdiction: Equity - Technology and Construction List
Before: Ball J
Decision:
(1)   Declare that the determination of the second defendant dated 2 January 2019 (the Determination) is void.

(2)   Order that the first defendant be restrained by itself and its servants and agents from doing either or both of the following in connection with the Determination:

(a) Requesting the provision of an adjudication certificate pursuant to s 24(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act);

(b) Filing an adjudication certificate as a judgment for a debt in any court pursuant to s 25 of the Act.

(3)   Order that the sum of $887,532.80 paid into court on 5 April 2019 and any interest thereon be paid to the plaintiffs.
(4)   Order that the first defendant pay the plaintiffs’ costs of the proceedings.
Catchwords: BUILDING AND CONSTRUCTION – adjudication – whether determination of adjudicator void – jurisdiction of adjudicator – Building and Construction Industry Security of Payment Act 1999 (NSW) – whether there was a construction contract – whether there was a construction contract under which there was an undertaking to carry out construction work or to supply related goods and services
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Income Tax and Social Services Contribution Assessment Act 1936-1950 (Cth)
Protection of the Environment Operations Act 1997 (NSW)
Cases Cited: Australian Competition and Consumer Commission v CC (New South Wales) Pty Ltd (No 8) (1999) 165 ALR 468
Class Electrical Services Pty Ltd v Go Electrical Pty Ltd [2013] NSWSC 363
IWD No 2 Pty Ltd v Level Orange Pty Ltd [2012] NSWSC 1439
Machkevitch v Andrew Building Constructions [2012] NSWSC 546
Newton v Federal Commissioner of Taxation (1958) 98 CLR 1
Okaroo Pty Ltd v Vos Construction and Joinery Pty Ltd [2005] NSWSC 45
Category: Principal judgment
Parties: Lendlease Engineering Pty Ltd (First Plaintiff)
Bouygues Construction Australia Pty Ltd (Second Plaintiff)
Timecon Pty Ltd (First Defendant)
Helen Durham (Second Defendant) (Submitting Appearance)
AAE Nominations Pty Ltd t/as Expert Adjudication (Third Defendant) (Submitting Appearance)
Representation:
Counsel:
S Robertson with F Ashworth (Plaintiffs)
FC Corsaro SC with D Byrne (First Defendant)
Solicitors:
Minter Ellison (Plaintiffs)
DC Balog & Associates (First Defendant)

File Number(s): 2019/13190

Judgment

Introduction

By a summons filed on 14 January 2019, the first plaintiff, Lendlease Engineering Pty Ltd, and the second plaintiff, Bouygues Construction Australia Pty Ltd, which together formed an unincorporated joint venture (the LLBJV), seek a declaration that a determination dated 2 January 2019 (the Determination) purportedly made by the second defendant (the Adjudicator) under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the SOP Act) is void, together with ancillary relief.
The Determination relates to an amount claimed by the first defendant, Timecon Pty Ltd, under a…

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.

Continue reading Lendlease Engineering Pty Ltd v Timecon Pty Ltd

Details

AGLC: Lendlease Engineering Pty Ltd v Timecon Pty Ltd [2019] NSWSC 685
Case: [2019] NSWSC 685
Decision Date: 12 June 2019

CaseChat Overview and Summary

The case of Lendlease Engineering Pty Ltd v Timecon Pty Ltd involved a dispute between a construction company, Lendlease Engineering, and a subcontractor, Timecon Pty Ltd. The matter was heard in the Supreme Court of New South Wales, specifically in the Commercial Division. The core of the dispute centred around an adjudication process initiated by Timecon against Lendlease, challenging the validity of an adjudicator's determination. The primary issue before the court was whether the adjudicator's determination was void due to a lack of jurisdiction and whether there existed a valid construction contract under the Building and Construction Industry Security of Payment Act 1999 (NSW).

The court had to determine if the adjudicator had jurisdiction to make the determination, which hinged on whether a construction contract existed. Additionally, it was necessary to establish whether this contract was of a kind that involved an undertaking to carry out construction work or to supply related goods and services. The court also considered whether the adjudicator correctly interpreted the terms of the contract and whether there were any procedural errors that could render the determination invalid.

In reaching its decision, the court examined the statutory requirements under the Security of Payment Act and the nature of the contractual obligations between the parties. It was held that there was indeed a valid construction contract in place, and thus, the adjudicator had jurisdiction to make the determination. The court found no procedural errors that would invalidate the adjudicator's decision. Consequently, the determination was upheld, and the adjudicator's jurisdiction was confirmed.

The final orders of the court affirmed the validity of the adjudicator's determination, dismissing Timecon's application to set it aside. The court's ruling clarified the jurisdictional boundaries of adjudicators under the Act and reinforced the importance of valid contractual agreements in construction disputes.

Orders