JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: CONSTRUCTION CONTRACTS ACT 2004 (WA)
CITATION: MATCH PROJECTS PTY LTD and ARCCON (WA) PTY LTD [2009] WASAT 134
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MR C RAYMOND (SENIOR MEMBER)
HEARD: 18 MAY 2009
DELIVERED : 30 JUNE 2009
FILE NO/S: CC 236 of 2009
BETWEEN: MATCH PROJECTS PTY LTD
Applicant
AND
ARCCON (WA) PTY LTD
Respondent
Catchwords:
Construction Contracts Act 2004 (WA) - Whether right of review extends to decision rejecting submissions for the adjudication to be dismissed - Application of doctrine of precedent - Effect of obligation to prepare application and serve other party to the contract - Whether application for adjudication properly prepared and served
Legislation:
Building and Construction Industry Security of Payment Act 1999 (NSW)
Construction Contracts Act 2004 (WA), s 6, s 7, s 25, s 26, s 26(1), s 27, s 31, s 32, s 32(2)(a)(i) (v), s 36, s 37, s 40, s 41, s 44, s 45, s 46, s 46(1), s 46(2), s 46(3), s 53
Construction Contracts Bill 2004
Construction Contracts Regulations 2004 (WA), reg 4, reg 5
Construction Contracts (Security of Payments) Act 2004 (NT), s 33(1)(a), s 33(1)(a)(ii), s 48
Corporations Act 2001 (Cth)
Interpretation Act 1984 (WA), s 76, s 76(d)
State Administrative Tribunal Act 2004 (WA), s 5, s 29(3), s 29(3)(c)(i), s 29(3)(c)(ii), s 29(9), s 91, s 105(3)
Result:
Application for review dismissed
Category: A
Representation:
Counsel:
Applicant: Mr M Zilko SC
Respondent: Mr S Boyle
Solicitors:
Applicant: Deacons
Respondent: Clayton Utz
Case(s) referred to in decision(s):
Amflo Constructions Pty Ltd v Jefferies [2003] NSWSC 856
Bakker and City of Nedlands [2005] WASAT 106
Brodyn Pty Ltd (t/as Time Cost and Quality) v Davenport (2004) 61 NSWLR 421
Clintway Pty Ltd and The Owners of Strata Plan 21805 [2008] WASAT 294
Craig v State of South Australia (1995) 184 CLR 163
Deakin v Webb (Commissioner of Taxes) (1904) 1 CLR 585 at 604
Diploma Construction Pty Ltd and Esslemont Nominees Pty Ltd [2006] WASAT 350
Federal Commissioner of Taxation v Salenger (1988) 81 ALR 25
Independent Fire Sprinklers (NT) Pty Ltd v Sunbuild Pty Ltd [2008] NTSC 46 (14 November 2008)
Match Projects Pty Ltd and Arccon (WA) Pty Ltd [2009] WASAT 56
McGrath v Commonwealth (1944) 69 CLR 156
Mustac v Medical Board of Western Australia [2007] WASCA 128
O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2009] WASC 19
Silent Vector Pty Ltd T/As Sizer Builders and Squarcini [2008] WASAT 39
Slack v Leeds Industrial Co‑operative Society Ltd [1923] 1 Ch 431
United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant applied for the review of a decision of an adjudicator under the Construction Contracts Act 2004 (WA). The adjudicator had declined to dismiss the application on the ground that it had not been properly served in accordance with s 26 of the Construction Contracts…
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- Case
- [2009] WASAT 134
- Decision Date
CaseChat Overview and Summary
The legal issues included whether the right of review extended to a decision rejecting submissions for the adjudication to be dismissed and whether the application for adjudication was properly prepared and served. The court focused on the interpretation of section 46(1) of the Act and its relation to section 46(2), which requires the adjudicator to make a determination if a decision made under section 31(2)(a) is set aside on review. Counsel for Arccon argued that the opinion in ODG John Holland was obiter dicta and not binding, while Match Projects contended that the opinion was central to the determination of the case. The court found that the adjudicator had not erred in handling the adjudication application, thus the issue of jurisdictional error did not arise.
In its reasoning, the court highlighted that the term "joint venture" denotes an association of persons for mutual profit, and the service address of the joint venture was correctly identified as the principal place of business. The court concluded that the adjudication application was prepared in accordance with the statutory requirements. The court dismissed the application for review of the adjudicator's decision, finding no error in the adjudicator's handling of the adjudication application. The orders issued by the court included dismissing the application for review of the adjudicator's decision.
Orders
Orders of the court
The Tribunal will accordingly issue an order that: 1. The application for review of the decision of the adjudicator reflected in the determination made on 2 December 2008 and amended on 16 December 2008 is dismissed.
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
Ratio Decidendi
Legal Principle Established
Established by: JUSTICE J
The view expressed by the High Court in United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1 at 10 is instructive.The term 'joint venture' is not a technical one with a settled common law meaning. As a matter of ordinary language, it connotes an association of persons for the purposes of a particular trading, commercial, mining or other financial undertaking or endeavour with a view to mutual profit, with each participant usually (but not necessarily), contributing money, property or skill. Whatever might be the normal or more usual form of an association, it is clear that the High Court has recognised that a joint venture is an association of persons. We do not understand Match Projects to dispute that the only address from which the joint venture carries on business is the address of Match Projects at which the application was served, being Level 1, 256 Stirling Highway, Claremont in the State of Western Australia. That address is therefore the principal place of business in the State. We accordingly find that the application was served in accordance with s 26 of the CC Act. Was the adjudication application prepared in accordance with s 26? There is no prescribed form for an adjudication application. It is submitted on behalf of Arccon that all of the information required to be included in the application, was included within the covering letter and the application with attached documents, to the extent to which the information was known by Arccon. We were not referred to any information which demonstrates that Arccon was aware of more details concerning the owners than was given in the application. In the circumstances we consider that the adjudication application was prepared in accordance with s 26 and the CC Regulations. The Tribunal will accordingly issue an order that:1.The application for review of the decision of the adjudicator reflected in the determination made on 2 December 2008 and amended on 16 December 2008 is dismissed.