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Maxstra Constructions Pty Ltd v Joseph Gilbert & Ors

Maxstra Constructions Pty Ltd v Joseph Gilbert & Ors

Case [2013] VSC 243 10 May 2013

Statutory Interpretation

Adjudication

Jurisdictional Error

Construction Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST

No. 00884 of 2013

MAXSTRA CONSTRUCTIONS PTY LTD (ACN 144 590 438)	Plaintiff
v
JOSEPH GILBERT (T/A J GILBERT CONCRETE) (ABN 62 164 470 431)	First Defendant
AND
JOHN MCMULLAN	Second Defendant
AND
THE INSTITUTE OF ARBITRATORS AND MEDIATORS AUSTRALIA (ACN 008 520 045)	Third Defendant

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JUDGE:	VICKERY J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2013
DATE OF JUDGMENT:	10 May 2013
CASE MAY BE CITED AS:	Maxstra Constructions Pty Ltd v Joseph Gilbert & Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 243

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BUILDING CONTRACTS - Building and Construction Industry Security of Payment Act 2002 (Vic) – Adjudication conducted under Part 3 Division 2 of the Act – Apparent conflict between s 10B(2)(c) with s 11(1)(b)(iv) of the Act – Conflict resolved by application of statutory construction principles –Adjudicator erred in statutory construction – Jurisdictional error – Certiorari granted – Determination of adjudicator quashed and matter remitted for determination in accordance with the law.

STATUTES INTERPRETATION - Apparent conflict between provisions of an Act – Conflict resolved by application of statutory construction principles – Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [69]-[71] considered and applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Twigg	Moores Legal
For the First Defendant	Mr James Shaw	Nevett Ford Lawyers
For the Second Defendant	No Appearance
For the Third Defendant	No Appearance

HIS HONOUR:

Introduction

The Plaintiff was the head contractor for the construction of a new service station on the Northern Highway at Echuca, Victoria, known as the United Service Station (the “Project”).

The First Defendant, Mr Gilbert, is a concreter who trades as a sole trader. The Plaintiff and Mr Gilbert entered into a sub-contract pursuant to which Mr Gilbert agreed to perform concreting works on the Project. The sub-contract was in writing and comprised a number of documents. The terms and conditions of the sub-contract are contained in a document titled “Contract No: S10876, Sub-Contract: Concrete Works, Project: United Service Station Northern Highway Echuca”. The sub-contract price was $580,000, excluding GST.

Mr Gilbert served a Payment Claim dated 21 December 2012 pursuant to the Building and Construction Industry Security of Payment Act 2002 (the “Act”) on the Plaintiff (the “Payment Claim”).

The amount claimed on the Payment Claim was calculated by reference to the amount of work complete, and made allowances for retention under the contract and also for damage that had occurred to a diesel tank. The Payment Claim claimed an amount of $259,954.62.

The Plaintiff responded to the Payment Claim with a Payment Schedule dated 28 December 2012 (the “Payment Schedule”). The Plaintiff disputed the amount claimed by Mr Gilbert and sought to set-off amounts for the cost to complete certain items and the cost of rectification of damage in the amount of $234,729.63. It also sought to set-off an amount of $217,500 by way of “delay costs”. After taking these items…

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.

Continue reading Maxstra Constructions Pty Ltd v Joseph Gilbert & Ors

Details

AGLC: Maxstra Constructions Pty Ltd v Joseph Gilbert & Ors [2013] VSC 243
Case: [2013] VSC 243
Decision Date: 10 May 2013

CaseChat Overview and Summary

In the case of Maxstra Constructions Pty Ltd v Joseph Gilbert & Ors, the plaintiff, Maxstra Constructions, sought to enforce a payment claim made under a building contract. The defendant, Joseph Gilbert, disputed the claim and raised objections in the adjudication process conducted under the Building and Construction Industry Security of Payment Act 2002 (Vic). The dispute reached the Court of Appeal, which was tasked with determining whether the adjudicator had correctly interpreted and applied the relevant statutory provisions.

The central legal issue before the court was whether there was an apparent conflict between section 10B(2)(c) and section 11(1)(b)(iv) of the Act and, if so, how this conflict should be resolved. The court had to consider whether the adjudicator's interpretation of the statutory provisions was correct and whether there had been a jurisdictional error in the adjudication process. The court needed to determine if the adjudicator had erred in their construction of the Act and whether this error was sufficient to warrant the quashing of the adjudicator's determination and the remitting of the matter for a lawful determination.

The court found that the adjudicator had indeed erred in their statutory construction, leading to a jurisdictional error. The court applied the principles of statutory interpretation as outlined in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28, finding that the apparent conflict between the statutory provisions could be resolved by applying these principles. The court held that the adjudicator had not correctly interpreted the provisions and thus had made an error in their adjudication. As a result, the court granted certiorari, quashed the adjudicator's determination, and remitted the matter back to the adjudicator for a lawful determination in accordance with the Act.

The final orders of the court were that the determination of the adjudicator be quashed and that the matter be remitted for re-determination in accordance with the law. The court did not impose any further orders or make any further findings beyond those necessary to address the jurisdictional error identified in the adjudication process.

Orders