| 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 |
| v | |
| Z&H BUILDING DEVELOPMENT PTY LTD and LOU STOJANOVSKI (in his capacity as Adjudicator appointed under | 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…
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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2019] VSC 633
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.