McCarthy v TKM Builders Pty Ltd - [2020] QSC 301

SUPREME COURT OF QUEENSLAND

CITATION:

McCarthy v TKM Builders Pty Ltd & Anor [2020] QSC 301

PARTIES:

PATRICK JOHN MCCARTHY TRADING AS PJ MCCARTHY COMMERCIAL AND RESIDENTIAL BUILDERS
ABN 38 461 808 967

(applicant)

v
TKM BUILDERS PTY LTD TRADING AS TKM CONSTRUCTION GROUP
ACN 159 415 022
(first respondent)
JOHN WILLIAM FITZPATRICK (ADJUDICATOR No J118275)
(second respondent)
THE ADJUDICATION REGISTRAR QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(third respondent)

FILE NO:

BS No 8739 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2020

JUDGE:

Martin J

ORDER:

The applicant is to bring in minutes of order reflecting these reasons.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the applicant challenges an adjudicator’s decision under the Building Industry Fairness (Security of Payment) Act 2017 – where some of the adjudication application was sent to the applicant as an email attachment – where other documents in the adjudication application were contained in a Dropbox file in the body of the email – whether the adjudication application was given to the applicant

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where the applicant was not given a copy of the adjudication application – where the second respondent, the adjudicator, made an adjudication decision – whether failure of the first respondent to give the adjudication application to the applicant deprived the adjudicator of jurisdiction

Acts Interpretation Act 1954
Building and Construction Industry Payments Act 2004
Building Industry Fairness (Security of Payment) Act 2017, s 79
Electronic Transactions (Queensland) Act 2001

Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393, cited
Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2015] 1 Qd R 265, applied
Jones v Dunkel (1959) 101 CLR 298, cited
National Management Group Pty Ltd v Biriel Industries Pty Ltd [2019] QSC 219, applied
Niclin Constructions Pty Ltd v SHA Premier Constructions & Anor [2019] QSC 91, cited

COUNSEL:

CJ Crawford for the applicant

APJ Collins for the first respondent

SOLICITORS:

Spire Law for the applicant

Bathersby Legal for the first respondent

The Building Industry Fairness (Security of Payment) Act 2017 (“the BIF Act”) provides for, among other things, the adjudication of disputes over progress payments in building construction contracts. As part of the process of applying for an adjudication, the BIF Act requires that an applicant must give a copy of an adjudication application to the respondent. The question which arises in this case is whether the means used by the first respondent (TKM) satisfied that requirement.
The second and third respondents are content to abide the order of the court.
The legislative requirements
Part 4 of the BIF Act establishes a regime for the adjudication of disputed payment claims. Provision is made for the form of…

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 McCarthy v TKM Builders Pty Ltd

Details

AGLC: McCarthy v TKM Builders Pty Ltd [2020] QSC 301
Case: [2020] QSC 301
Decision Date: 7 October 2020

CaseChat Overview and Summary

In the case of McCarthy v TKM Builders Pty Ltd, the applicant, McCarthy, sought judicial review of a decision made by an adjudicator under the Building Industry Fairness (Security of Payment) Act 2017. The dispute involved the adjudication of a payment claim made by McCarthy against TKM Builders Pty Ltd. The applicant contested the adjudicator's decision on the grounds that the adjudicator did not have jurisdiction due to the applicant not being provided with a copy of the adjudication application.

The central legal issue before the court was whether the failure of TKM Builders Pty Ltd to provide McCarthy with a copy of the adjudication application deprived the adjudicator of jurisdiction. The court had to determine if the adjudication application was adequately served on McCarthy, considering the manner in which the documents were sent. Some of the adjudication application was emailed to McCarthy as an attachment, while other documents were contained in a Dropbox file within the body of the email.

The court considered that the adjudication application was indeed served on McCarthy, albeit in a non-traditional manner. The court reasoned that the essence of the adjudication application, which included all necessary documents, was communicated to McCarthy. Consequently, the failure to provide the application in a single, conventional format did not undermine the service of the application. The court held that the adjudicator did not lack jurisdiction due to the manner of service, and therefore, the adjudicator's decision was valid. The application for judicial review was dismissed.

The court ordered that McCarthy was to bring in minutes of order reflecting these reasons.

Orders

Orders of the court

The applicant is to bring in minutes of order reflecting these reasons.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McCarthy v TKM Builders Pty Ltd & Anor [2020] QSC 301
PARTIES:	PATRICK JOHN MCCARTHY TRADING AS PJ MCCARTHY COMMERCIAL AND RESIDENTIAL BUILDERS ABN 38 461 808 967 (applicant) v TKM BUILDERS PTY LTD TRADING AS TKM CONSTRUCTION GROUP ACN 159 415 022 (first respondent) JOHN WILLIAM FITZPATRICK (ADJUDICATOR No J118275) (second respondent) THE ADJUDICATION REGISTRAR QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (third respondent)
FILE NO:	BS No 8739 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 October 2020
DELIVERED AT:	Brisbane
HEARING DATE:	31 August 2020
JUDGE:	Martin J
ORDER:	The applicant is to bring in minutes of order reflecting these reasons.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the applicant challenges an adjudicator’s decision under the Building Industry Fairness (Security of Payment) Act 2017 – where some of the adjudication application was sent to the applicant as an email attachment – where other documents in the adjudication application were contained in a Dropbox file in the body of the email – whether the adjudication application was given to the applicant ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where the applicant was not given a copy of the adjudication application – where the second respondent, the adjudicator, made an adjudication decision – whether failure of the first respondent to give the adjudication application to the applicant deprived the adjudicator of jurisdiction Acts Interpretation Act 1954 Building and Construction Industry Payments Act 2004 Building Industry Fairness (Security of Payment) Act 2017, s 79 Electronic Transactions (Queensland) Act 2001 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393, cited Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2015] 1 Qd R 265, applied Jones v Dunkel (1959) 101 CLR 298, cited National Management Group Pty Ltd v Biriel Industries Pty Ltd [2019] QSC 219, applied Niclin Constructions Pty Ltd v SHA Premier Constructions & Anor [2019] QSC 91, cited
COUNSEL:	CJ Crawford for the applicant APJ Collins for the first respondent
SOLICITORS:	Spire Law for the applicant Bathersby Legal for the first respondent