Levi Pty Ltd v Z&H Building Development Pty Ltd - [2019] VSC 633

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

Not Restricted

S ECI 2019 0833

LEVI PTY LTD trading as iBuild Building Solutions (ACN 152 048 210)

Plaintiff

Z&H BUILDING DEVELOPMENT PTY LTD
as Trustee for the Wang Family Trust (ACN 120 886 884)

and

LOU STOJANOVSKI (in his capacity as Adjudicator appointed under
s 20(1) of the Building and Construction Industry Security of Payment Act 2002 (Vic))

First Defendant

Second Defendant

---

JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2019
DATE OF JUDGMENT:	24 September 2019
CASE MAY BE CITED AS:	Levi v Z&H Building Development
MEDIUM NEUTRAL CITATION:	[2019] VSC 633

---

ADMINISTRATIVE LAW – Judicial review – Relief in the nature of certiorari – Whether adjudication determination is vitiated by jurisdictional error – Whether a payment claim was served in relation to a reference date which accrued more than three months’ earlier – Whether the Adjudicator correctly determined a reference date to 28 December 2018 – Whether certain work performed was able to be lawfully claimed – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 56 – Building and Construction Industry Security of Payment Act 2002 (Vic) ss 14(5)(b), 28O, 28R, 29, 31-41 - Building Act 1993 (Vic), s 37H(2).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Greenway	AIF Lucas & Co
For the First Defendant	Ms K Weston-Scheuber	Level Playing Field

HIS HONOUR:

Application

By Originating Motion and Summons dated 27 February 2019, Levi Pty Ltd (plaintiff), seeks orders quashing the Adjudication Determination dated 14 February 2019[1] (Adjudication Determination) made by the second defendant, Mr Lou Stojanovski,[2] (Adjudicator), on the grounds that:
[1]Adjudication Determination, (First Yin Affidavit, Exhibit ‘JY-22’ (CB Tab 39)).
[2]By letter dated 22 March 2019 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.

(a)Ground 1
Contrary to s 18(3)(c) of the Building and Construction Industry Security of Payment Act 2002 (Vic) (SoP Act) the adjudication application filed with the Authorised Nominating Authority on 21 January 2019 was invalid, as it was not served within ten business days after the first defendant received the payment schedule dated 28 December 2018.
(b)Ground 2
Contrary to s 14(5)(b) of the SoP Act, the payment claim dated 28 December 2018 contains claims for progress payments which were the subject of earlier progress claims, each with a reference date under s 9(2) of the SoP Act that accrued more than three months earlier.
(c)Ground 3
Alternatively, the Adjudicator erroneously determined 28 December 2018 as the reference date for the December Payment Claim by reason of cls 1.5 and 7.5 of the Contract rather than special condition 2 and the incorporated Stage Payment Schedule.
(d)Ground 4
Contrary to s 37H(2) of the Building Act 1993 (Vic), the December Payment Claim claimed a payment for works…

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 Levi Pty Ltd v Z&H Building Development Pty Ltd 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: [2019] VSC 633
Decision Date: 24 September 2019

CaseChat Overview and Summary

In the matter of Levi Pty Ltd v Z&H Building Development Pty Ltd, the case was heard in the Supreme Court of Victoria. Levi Pty Ltd, a subcontractor, initiated legal proceedings against Z&H Building Development Pty Ltd, the principal contractor, over a dispute concerning the validity of a payment claim and the adjudication determination that followed. The primary issue was whether the adjudication determination was flawed due to a jurisdictional error, specifically regarding the service of a payment claim in relation to a reference date that occurred more than three months prior, and whether the adjudicator correctly identified the reference date as 28 December 2018. The case also examined whether certain work performed could be lawfully claimed.

The court was required to determine if the adjudicator had correctly applied the law in establishing the reference date and whether the payment claim was validly served within the stipulated timeframe. The relevant statutory provisions from the Building and Construction Industry Security of Payment Act 2002 (Vic) and the Building Act 1993 (Vic) were central to the court's analysis. The court examined whether the adjudicator's determination was affected by jurisdictional error and if the work claimed was within the scope of the contract.

The court found that the adjudicator had correctly identified the reference date as 28 December 2018 and that the payment claim was validly served within the requisite timeframe. The court held that there was no jurisdictional error in the adjudication determination, as the adjudicator had properly applied the relevant statutory provisions. Consequently, the court dismissed Levi Pty Ltd's application for judicial review, affirming the adjudication determination. Levi Pty Ltd was ordered to pay Z&H Building Development Pty Ltd's costs of the proceeding.

Orders