LONGMONT CONSOLIDATED PTY LTD and FLEETWOOD PTY LTD

Longmont Consolidated Pty Ltd (Longmont) sought a review of a decision by an adjudicator to dismiss its application for adjudication, which was out of time. The application was made under the Construction Contracts Act 2004 (WA) (CC Act). The dispute involved the interpretation of a contractual provision concerning payment claims, specifically Special Condition 15 (SC-15) in the contract between Longmont and Fleetwood Pty Ltd (Fleetwood). Longmont claimed a payment dispute arose with Fleetwood in respect of a payment claim made for Spotters Costs dated 4 May 2009. Fleetwood argued that Longmont's application for adjudication was out of time. The adjudicator found that as the contract was silent as to what was to occur if Longmont's invoice was not assessed as 'correct', the provisions of Schedule 1 Division 5 of the CC Act were to be implied. The adjudicator then went on to find that the payment dispute arose 28 days after 20 May 2009, being 17 June 2009. The adjudicator found that the latest date for service of the application for adjudication was 28 days after 17 June 2009, being 15 July 2009. As the adjudication application was served on 28 July 2009, it was dismissed for being out of time.

The tribunal found that the relevant contractual provision concerning payments to Longmont was dependent on an approved invoice being submitted. SC-15 required Longmont to submit estimates of work performed and projected for performance during that month and by the 20th of each month. Once such an estimate was provided, Fleetwood was required to review the estimates and, upon approval, return them to Longmont to be submitted on the 1st of the following month. The relevant clause went on to provide that only following that process was Fleetwood to make payment to Longmont 30 days after receipt of an approved invoice. The Tribunal held that the relevant contractual provision was silent as to what was to occur should an estimate not be approved or where no response to an estimate was given, and therefore did not provide a mechanism for making or responding to a payment claim, as defined in s 3 of the CC Act. Alternatively, the Tribunal found that such a contractual provision purports to modify or restrict the operations of the CC Act and had no effect by virtue of s 53 of that Act.

On either basis, the Tribunal found that s 16, s 17 and s 18 of the CC Act applied and that, consequently, no payment dispute ever arose and, therefore, the adjudication application was made within 28 days of a payment dispute arising. The Tribunal, therefore, dismissed the application to review. The application to review the adjudicator's decision of 24 August 2009 in adjudication No 04-09-12 is dismissed. The decision of the adjudicator made on 24 August 2009 in adjudication No 04-09-12 is affirmed.