MATCH PROJECTS PTY LTD and ARCCON (WA) PTY LTD - [2009] WASAT 56

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 56

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 25 MARCH 2009

DELIVERED : 2 APRIL 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) - Application for extension of time

Legislation:

Builders' Registration Act 1939 (WA)
Construction Contracts Act 2004 (WA), s 3, s 26, s 26(1), s 26(1)(b), s 29(3), s 30, s 31(2), s 31(2)(a), s 31(2)(a)(i), s 31(2)(b), s 31(3), s 32(2)(a), s 32(2)(b), s 32(3), s 33, s 36, s 41(1), s 42(2), s 46, s 46(1), s 46(2), s 49
Corporations Act 2001 (Cth)
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(i), s 29(3)(c)(ii), s 42, s 91
State Administrative Tribunal Rules 2004 (WA), r 10
Town Planning and Development Act 1928 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant: Mr W Ryan
Respondent: Mr S Boyle

Solicitors:

Applicant: Deacons
Respondent: Clayton Utz

Case(s) referred to in decision(s):

Diploma Construction Pty Ltd and Esslemont Nominees Pty Ltd [2006] WASAT 350
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson (1990) 64 ALJR 458
ITQ Pty Ltd and Hyde Park Management Ltd [2008] WASAT 66
Jackamarra v Krakouer (1998) 195 CLR 516
Mustac v Medical Board of Western Australia [2007] WASCA 128
O'Connor and Town of Victoria Park [2005] WASAT 161
O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2009] WASC 19
The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Tribunal heard an application to extend the time to review the decision of an adjudicator under s 46(1) of the Construction Contracts Act 2004 (WA). The adjudicator had handed down a determination requiring the applicant to pay the respondent an amount of $650,783.93.
The Tribunal applied the criteria as set out in O'Connor and Town of Victoria Park [2005] WASAT 161 in determining whether or not to grant the extension of time. In relation to each relevant factor, the Tribunal found as follows.
The Tribunal found that the period of delay was seven weeks; alternatively, depending upon the date on which a valid adjudication application was taken to have been delivered, a period of five weeks. The Tribunal concluded that a delay of seven weeks, or five weeks, in the context of legislation which required an entire adjudication process to be generally completed within 28 days, was a lengthy delay. In the course of determining the length of delay, the Tribunal concluded a proposed basis of review in which it was submitted that the Tribunal should determine whether the adjudication application was to be deemed to be dismissed under s 31(3) of the Construction Contracts Act 2004 (WA) was not susceptible to the Tribunal's jurisdiction. The Tribunal held…

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 56
Decision Date: 2 APRIL 2009

CaseChat Overview and Summary

The case between Match Projects Pty Ltd and Arccon (WA) Pty Ltd was brought before the court concerning an application for an extension of time under the Construction Contracts Act 2004 (WA). The dispute arose from a contractual relationship between the parties, where the applicant sought an extension of time to complete certain works as per the contract. The respondent contested the application, arguing that the applicant had not satisfied the conditions necessary for such an extension.

The legal issues before the court were whether the applicant had provided sufficient evidence to justify an extension of time and whether the respondent had acted unreasonably in denying the extension. The court had to determine if the applicant had a genuine entitlement to an extension of time and if the respondent's denial was justified under the statutory framework. The court also needed to consider the specific provisions of the Construction Contracts Act 2004 (WA) and how they applied to the facts of the case.

In its reasoning, the court examined the evidence provided by both parties and assessed the application's compliance with the statutory requirements. The court found that the applicant had demonstrated sufficient grounds for an extension of time in most aspects of the application. However, regarding a specific relief sought in Order 4, the court determined that the applicant had not met the necessary criteria. Consequently, the court granted an extension of time for the majority of the application but refused it for the particular relief sought in Order 4.

Orders

Orders of the court

For the above reasons, an order will issue as follows. 1. An extension of time is granted for the making of this application for the orders sought as set out in the application lodged on 17 February 2009 under the section 'Decision Sought', save in respect of Order 4 thereof. 2. The application for an extension of time for the making of this application is refused in respect of the relief sought in Order 4 of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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