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Maxstra NSW Pty Ltd v Blacklabel Services Pty Ltd

Maxstra NSW Pty Ltd v Blacklabel Services Pty Ltd

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Case Copied 24 April 2013 40 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Maxstra NSW Pty Ltd v Blacklabel Services Pty Ltd [2013] NSWSC 406
Hearing dates: 4 March 2013
Decision date: 24 April 2013
Before: Rothman J
Decision:
(1)Judgment for the defendants;
(2)The plaintiff, Maxstra NSW Pty Ltd, pay the first defendant's costs of and incidental to the proceedings, as agreed or assessed;
(3)The Court grants leave or liberty to the parties to apply in relation to any special or different order as to costs. Such application should be made within seven days of today and should be accompanied by short written submissions. The other party, if such an application be made, may respond also in writing within a further seven days;
(4)Proceedings otherwise dismissed.

Catchwords: BUILDING AND ENGINEERING CONTRACTS - Building and Construction Industry Security of Payment Act 1999 - challenge to adjudication determination - claim for work either as variation or on quantum meruit - allegation that amount claimed is within the contract price - not a matter raised in payment schedule and inconsistent with contractual documents - allegation of denial of procedural fairness and error of law - no error of law involved in determination - alleged denial of procedural fairness had no practical impact - no jurisdictional error
Legislation Cited: Building and Construction Industry Security of Payment Act 1999
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Cases Cited: Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd [2000] FCA 17; (2000) 169 ALR 344
Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126
Brodyn Pty Ltd trading as Time Cost and Quality v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421
Clarence Street Pty Ltd v Isis Projects Pty Ltd [2005] NSWCA 391; (2005) 64 NSWLR 448 at 455
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
Collector of Customs v Pozzolanic Enterprises Pty Ltd; Collector of Customs v Pressure Tankers Pty Ltd [1993] FCA 322; (1993) 43 FCR 280
Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99
John Goss Projects v Leighton Contractors [2006] NSWSC 798; (2006) 66 NSWLR 707
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1
Owner Strata Plan 61172 v Stratabuild Ltd [2011] NSWSC 1000
Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Australian Bank Employees' Union; Ex…

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: [2013] NSWSC 406
Decision Date: 24 April 2013

CaseChat Overview and Summary

Maxstra NSW Pty Ltd, a builder, commenced proceedings against Blacklabel Services Pty Ltd, the principal, in the Supreme Court of New South Wales, seeking a review of an adjudication determination. The adjudication was made under the Building and Construction Industry Security of Payment Act 1999. Maxstra challenged the determination that it was to pay Blacklabel a sum of money as either a variation to the contract or on a quantum meruit basis. Maxstra argued that the amount claimed was within the contract price, was not raised in the payment schedule and was inconsistent with the contractual documents. Maxstra also alleged that it had been denied procedural fairness and that the adjudicator had made an error of law.

The court found that the adjudicator's determination contained no error of law. The court also found that the alleged denial of procedural fairness had no practical impact. The court held that the adjudicator had considered all relevant material and had followed the correct process. The court found that the determination was consistent with the contractual documents and that the amount claimed was not within the contract price. The court held that the claim was for work done as either a variation or on a quantum meruit basis and that the adjudicator had correctly determined the amount owed.

The court dismissed Maxstra's application for review of the adjudication determination. The court held that the adjudicator had not made any jurisdictional error and that the determination was valid and binding. The court found that the adjudicator had correctly exercised his or her discretion and that the determination was not unreasonable. The court held that Maxstra was liable to pay the amount determined by the adjudicator. The court dismissed Maxstra's application with costs.

Orders