Match Projects Pty Ltd and Arccon (WA) Pty Ltd - [2009] WASAT 134

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…

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.

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Details

Case: [2009] WASAT 134
Decision Date: 30 JUNE 2009

CaseChat Overview and Summary

Match Projects Pty Ltd and Arccon (WA) Pty Ltd were involved in a dispute regarding the validity of an adjudication application under the Construction Contracts Act 2004 (WA). The matter was heard by the Supreme Court of Western Australia, where the central issue was whether Match Projects was entitled to seek a review of the adjudicator's decision to not dismiss the adjudication application due to Arccon's alleged failure to comply with statutory requirements. Specifically, the court examined whether the adjudication application was properly prepared and served under section 26 of the Act. The court also considered the effect of the doctrine of precedent and the obligation to prepare and serve an application to the other party to the contract.

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

JUSTICE J

Is Match Projects entitled to seek a review of the adjudicator's decision to not dismiss the adjudication application pursuant to s 31(2)(a) by reason of Arccon's failure to comply with s 26? Specific consideration is given below to whether the manner in which the application was prepared and served complied with the legislative requirements. For present purposes, we shall consider only whether review is available on the ground that it is alleged that the application for adjudication was not prepared and served in accordance with s 26. In the ODG John Holland decision, Beech J expressed the view that on a proper construction of s 46(1):… there will be a "decision" under s 31(2)(a) for the purposes of s 46(1), if the adjudicator:(a)dismisses the application without making a determination of its merits in reliance on s 31(2)(a); or(b)rejects a submission of a respondent to an adjudication application that the application should be dismissed under s 31(2)(a). In so stating, the Court respectfully disagreed with a conclusion expressed in Diploma Construction Pty Ltd and Esslemont Nominees Pty Ltd [2006] WASAT 350 (Diploma). It was there held that the right of review in s 46(1) was not engaged when an adjudicator found that the adjudication application should not be dismissed, so that s 46(1) applied only when there was a dismissal under s 31(2)(a). Counsel for Arccon submitted that the Tribunal is not bound by the ODGJohn Holland decision on the basis that the opinion expressed on the construction of s 46(1) was obiter dicta not required for the determination of the case. It is submitted that the Court was not taken through the effect of s 46(2), which requires that if, on review, a decision made under s 31(2)(a) is set aside, and under the State Administrative Tribunal Act 2004 (WA) (SAT Act), s 29(3)(c)(i) or s 29(3)(c)(ii) is reversed, the adjudicator is to make a determination under s 31(2)(b). Further, the respondent submits that the only way that s 46 can be read without rendering s 46(2) 'a nonsense' is to limit reviews under s 46(1) to reviews of decisions to dismiss an application under s 31(2)(a). Senior counsel for Match Projects submitted that the opinion expressed by the Court was not mere obiter dicta, in the form of a view expressed in passing on some matter not directly in issue. Senior counsel points out that at para 5 and para 6 of ODG John Holland the Court identified that the opposition to the application for leave to enforce the adjudicator's determination was based solely on an application to quash the determination for jurisdictional error. Thus, the real issues related to an application for a writ of certiorari or for a declaration. The main issues on the application were:1)whether the application for adjudication failed to comply with s 26(1), and if so, 2)whether the failure of the adjudicator to reject the claim constituted an error for which certiorari should lie on ground of excess of jurisdiction. It was submitted that those were the matters which had to be determined. The Court found on an analysis of the facts and the application of the CC Act to them, that the adjudicator had not erred in the manner in which he had dealt with the adjudication application. The respondents in the matter (a group operating in a joint venture) were referred to as RLJV and that acronym is also used by us. The Court continued (at para 86):It follows from these conclusions that RLJV's application should be dismissed. There having been, on my analysis, no error by the adjudicator in relation to s 26(1), the question of whether such an error was a jurisdictional error does not arise. Nonetheless for the sake of completeness, I shall state my conclusions on the question of whether certiorari would lie in respect of an adjudication where the application for adjudication failed to comply with s 26(1) of the Act (CC Act).

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.