McNab Developments (Qld) Pty Ltd v MAK Construction Services Pty Ltd - [2013] QSC 293

SUPREME COURT OF QUEENSLAND

CITATION:

McNab Developments (Qld) Pty Ltd v MAK Construction Services Pty Ltd & Ors [2013] QSC 293

PARTIES:

MCNAB DEVELOPMENTS (QLD) PTY LTD
ACN 118 748 548
(applicant)
v
MAK CONSTRUCTION SERVICES PTY LTD
ACN 136 996 891
(first respondent)
ADJUDICATE TODAY PTY LTD
ACN 109 605 021
(second respondent)
HELEN DURHAM
(third respondent)

FILE NO:

BS5200 of 2013

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

25 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

9 August 2013

JUDGE:

Mullins J

ORDER:

1. Originating application is dismissed.

2. Any submission on costs on behalf of the first respondent is to be filed and served on or before 1 November 2013 and any submission on costs on behalf of the applicant is to be filed and served on or before 8 November 2013.

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 entered into a subcontract with the respondent to carry out concreting and formwork services – where the applicant terminated the subcontract – where the first respondent served a payment claim on the applicant pursuant to the Building and Construction Industry Payments Act 2004 (Qld) – where the reference date identified in the payment claim was after the termination date of the subcontract – where the applicant served a payment schedule – where the payment claim was referred to adjudication – whether identification of patently incorrect reference date deprived adjudicator of jurisdiction – where the adjudicator decided on the amount of the progress payment to be paid by the applicant – where the applicant applied to set aside the decision – whether there was jurisdictional error – whether the adjudicator assessed the claim on the merits – whether the adjudicator identified the source of the legal entitlement of the claimed amounts that were allowed by the adjudicator

Building and Construction Industry Payments Act 2004, s 10, s 12, s 13, s 17, s 24, s 26

BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2012] QSC 346, considered
Intero Hospitality Projects Pty Ltd v Empire Interior (Australia) Pty Ltd [2008] QCA 83, considered
John Goss Projects Pty Ltd v Leighton Contractors (2006) 66 NSWLR 707; [2006] NSWSC 798, considered
Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd [2012] 1 Qd R 525; [2011] QCA 22, considered
Pacific General Securities Ltd v Soliman and Sons Pty Ltd (2006) 196 FLR 388; [2006] NSWSC 13, considered
Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd [2012] QCA 276, considered
Walton Construction (Qld) Pty Ltd v Corrosion Control Technology Pty Ltd [2012] 2 Qd R 90; [2011] QSC 67, considered

COUNSEL:

K E Downes QC for the applicant
D A Savage QC and D P O’Brien for the first respondent

SOLICITORS:

Holding Redlich for the applicant
Connolly Suthers Lawyers for the first respondent

The applicant (McNab)…

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] QSC 293
Decision Date: 25 October 2013

CaseChat Overview and Summary

McNab Developments (Qld) Pty Ltd filed an application in the Supreme Court of Queensland to set aside an adjudicator’s decision that had awarded MAK Construction Services Pty Ltd a sum of money. The dispute arose from a subcontract for concreting and formwork services that McNab Developments had terminated. Following the termination, MAK Construction Services submitted a payment claim under the Building and Construction Industry Payments Act 2004 (Qld). This claim, however, referenced a date after the termination of the subcontract, which McNab Developments argued should have deprived the adjudicator of jurisdiction. The matter proceeded to adjudication, with the adjudicator ultimately deciding on the amount of the progress payment McNab Developments should make.

The primary legal issues the court needed to address were whether the adjudicator had jurisdiction given the incorrect reference date and whether there had been a jurisdictional error in the adjudicator’s decision. Further, the court had to determine if the adjudicator had assessed the claim on the merits and correctly identified the source of the legal entitlement of the claimed amounts allowed. The applicant argued that the adjudicator had no jurisdiction to make a determination because of the incorrect reference date, while the respondent contended that the adjudicator had assessed the claim on the merits and acted within his jurisdiction.

The court found that the adjudicator had jurisdiction to assess the claim on the merits despite the incorrect reference date. The court reasoned that the adjudicator had correctly identified the source of the legal entitlement for the claimed amounts and had thus acted within his jurisdiction. The court dismissed the applicant’s application to set aside the adjudicator’s decision, holding that there had been no jurisdictional error. The court ordered that submissions on costs be filed by specified dates.

The final orders of the court were that the originating application by McNab Developments to set aside the adjudicator’s decision was dismissed. Additionally, the court specified deadlines for the filing and serving of submissions on costs by both parties.

Orders

Orders of the court

1. Originating application is dismissed.

2. Any submission on costs on behalf of the first respondent is to be filed and served on or before 1 November 2013 and any submission on costs on behalf of the applicant is to be filed and served on or before 8 November 2013.

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:	McNab Developments (Qld) Pty Ltd v MAK Construction Services Pty Ltd & Ors [2013] QSC 293
PARTIES:	MCNAB DEVELOPMENTS (QLD) PTY LTD ACN 118 748 548 (applicant) v MAK CONSTRUCTION SERVICES PTY LTD ACN 136 996 891 (first respondent) ADJUDICATE TODAY PTY LTD ACN 109 605 021 (second respondent) HELEN DURHAM (third respondent)
FILE NO:	BS5200 of 2013
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	25 October 2013
DELIVERED AT:	Brisbane
HEARING DATE:	9 August 2013
JUDGE:	Mullins J
ORDER:	1. Originating application is dismissed. 2. Any submission on costs on behalf of the first respondent is to be filed and served on or before 1 November 2013 and any submission on costs on behalf of the applicant is to be filed and served on or before 8 November 2013.
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 entered into a subcontract with the respondent to carry out concreting and formwork services – where the applicant terminated the subcontract – where the first respondent served a payment claim on the applicant pursuant to the Building and Construction Industry Payments Act 2004 (Qld) – where the reference date identified in the payment claim was after the termination date of the subcontract – where the applicant served a payment schedule – where the payment claim was referred to adjudication – whether identification of patently incorrect reference date deprived adjudicator of jurisdiction – where the adjudicator decided on the amount of the progress payment to be paid by the applicant – where the applicant applied to set aside the decision – whether there was jurisdictional error – whether the adjudicator assessed the claim on the merits – whether the adjudicator identified the source of the legal entitlement of the claimed amounts that were allowed by the adjudicator Building and Construction Industry Payments Act 2004, s 10, s 12, s 13, s 17, s 24, s 26 BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2012] QSC 346, considered Intero Hospitality Projects Pty Ltd v Empire Interior (Australia) Pty Ltd [2008] QCA 83, considered John Goss Projects Pty Ltd v Leighton Contractors (2006) 66 NSWLR 707; [2006] NSWSC 798, considered Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd [2012] 1 Qd R 525; [2011] QCA 22, considered Pacific General Securities Ltd v Soliman and Sons Pty Ltd (2006) 196 FLR 388; [2006] NSWSC 13, considered Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd [2012] QCA 276, considered Walton Construction (Qld) Pty Ltd v Corrosion Control Technology Pty Ltd [2012] 2 Qd R 90; [2011] QSC 67, considered
COUNSEL:	K E Downes QC for the applicant D A Savage QC and D P O’Brien for the first respondent
SOLICITORS:	Holding Redlich for the applicant Connolly Suthers Lawyers for the first respondent