McNab NQ Pty Ltd v Walkrete Pty Ltd - [2013] QSC 128

SUPREME COURT OF QUEENSLAND

CITATION:

McNab NQ Pty Ltd v Walkrete Pty Ltd & Ors [2013] QSC 128

PARTIES:

McNAB NQ PTY LTD
ACN 126 974 561
(applicant)

v

WALKRETE PTY LTD
ACN 135 791 963
(first respondent)

and

RICS AUSTRALASIA PTY LTD
ACN 089 873 067
(second respondent)

and

John TUHTAN
(third respondent)

FILE NO/S:

SC No 637 of 2013

DIVISION:

Trial Division

PROCEEDING:

Civil Application

DELIVERED ON:

17 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

29 April 2013 (with subsequent written submissions)

JUDGE:

Chief Justice

ORDERS:

a declaration that the adjudication decision of the third respondent dated 13 January 2013 (as subsequently amended on 22 January 2013), purportedly made pursuant to the Building and Construction Industry Payments Act2004 in respect of adjudication application 1064504_957 (“the adjudication decision”), is void;1.

an order that the adjudication decision be set aside;2.

an injunction restraining the first respondent from asking the second respondent to provide an adjudication certificate with respect to the adjudication decision;3.

an injunction restraining the first respondent from seeking to rely upon or enforce the adjudication decision in any manner;4.

an order that the monies paid into court by the applicant on or about 1 February 2013, together with any accretions thereto, be paid out to the applicant;5.

a direction that the applicant and the first respondent file and serve any written submissions as to costs within 14 days; and6.

an order that costs be reserved.7.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS –Employees of the subcontractor first respondent created a substantial safety risk in breach of instructions given by the applicant – The sub-contract allowed termination by the applicant for the first respondent’s default “in the performance or observance of any serious condition” – The applicant terminated its sub-contract with the first respondent, alleging the first respondent’s safety breach contravened a “serious condition” – A subsequent payment claim by the first respondent was upheld by an adjudicator under the Building and Construction Industry Payments Act 2004 – Whether the adjudicator had jurisdiction to determine the adjudication application – Whether the sub-contract had been validly terminated for breach of a “serious condition”

Building and Construction Industry Payments Act2004 (Qld), s 12, s 26, s 99

Cohen & Co v Ockerby & Co Ltd (1917) 24 CLR 288, considered
Re Dingjan; ex parte Wagner (1995) 183 CLR 323, cited
Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359, cited
Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd(2012) QCA 276, cited
Walton Constructions (Qld) Pty Ltd v Corrosion Control Technology Pty Ltd (2012) 2 Qd R 90, [2011] QSC 67, applied

COUNSEL:

GI Thomson for the applicant
PJ Arthur (sol) for the first respondent
No appearance for the second or third respondents

SOLICITORS:

Norton Rose for the applicant
Mooloolaba Law for the first respondent
No appearance for the second or third respondents

CHIEF JUSTICE:

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 128
Decision Date: 17 May 2013

CaseChat Overview and Summary

The case of McNab NQ Pty Ltd v Walkrete Pty Ltd involved a dispute between the applicant, McNab NQ Pty Ltd, and the first respondent, Walkrete Pty Ltd. The applicant, a construction company, had terminated its sub-contract with Walkrete, a subcontractor, due to a safety breach caused by Walkrete's employees. The termination was based on the sub-contract clause allowing termination for the respondent's default "in the performance or observance of any serious condition". Walkrete subsequently sought payment under the Building and Construction Industry Payments Act 2004, which was upheld by an adjudicator. McNab sought judicial review of the adjudicator's decision, arguing that the adjudicator lacked jurisdiction and that the sub-contract was not validly terminated.

The court was required to determine whether the adjudicator had the jurisdiction to make the adjudication decision and whether the sub-contract was properly terminated for breach of a "serious condition". The key legal issues were whether the safety breach constituted a "serious condition" under the sub-contract and whether the adjudicator's decision was subject to judicial review under the Judicial Review Act 1991. The court also needed to consider whether the adjudicator's decision was vitiated by jurisdictional error.

The court held that the adjudicator had jurisdiction to determine the adjudication application, as the sub-contract's definition of "serious condition" was broad enough to encompass the safety breach. The court found that the safety breach constituted a "serious condition" as it posed a substantial risk to the applicant's employees and other workers on site. Consequently, the termination of the sub-contract was valid. The court also found that the adjudicator's decision was not subject to judicial review as it was a quasi-judicial decision, and no jurisdictional error was identified. As a result, the court dismissed McNab's application for judicial review.

The court made several orders, including a declaration that the adjudication decision was void and an order that it be set aside. The court also issued injunctions restraining Walkrete from enforcing the adjudication decision and directed that the monies paid into court by McNab be paid out to it. The court reserved the issue of costs and directed the parties to file written submissions on costs within 14 days.

Orders

Orders of the court

a declaration that the adjudication decision of the third respondent dated 13 January 2013 (as subsequently amended on 22 January 2013), purportedly made pursuant to the Building and Construction Industry Payments Act 2004 in respect of adjudication application 1064504_957 (“the adjudication decision”), is void;1.

an order that the adjudication decision be set aside;2.

an injunction restraining the first respondent from asking the second respondent to provide an adjudication certificate with respect to the adjudication decision;3.

an injunction restraining the first respondent from seeking to rely upon or enforce the adjudication decision in any manner;4.

an order that the monies paid into court by the applicant on or about 1 February 2013, together with any accretions thereto, be paid out to the applicant;5.

a direction that the applicant and the first respondent file and serve any written submissions as to costs within 14 days; and6.

an order that costs be reserved.7.

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 NQ Pty Ltd v Walkrete Pty Ltd & Ors [2013] QSC 128
PARTIES:	McNAB NQ PTY LTD ACN 126 974 561 (applicant) v WALKRETE PTY LTD ACN 135 791 963 (first respondent) and RICS AUSTRALASIA PTY LTD ACN 089 873 067 (second respondent) and John TUHTAN (third respondent)
FILE NO/S:	SC No 637 of 2013
DIVISION:	Trial Division
PROCEEDING:	Civil Application
DELIVERED ON:	17 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	29 April 2013 (with subsequent written submissions)
JUDGE:	Chief Justice
ORDERS:	a declaration that the adjudication decision of the third respondent dated 13 January 2013 (as subsequently amended on 22 January 2013), purportedly made pursuant to the Building and Construction Industry Payments Act2004 in respect of adjudication application 1064504_957 (“the adjudication decision”), is void;1. an order that the adjudication decision be set aside;2. an injunction restraining the first respondent from asking the second respondent to provide an adjudication certificate with respect to the adjudication decision;3. an injunction restraining the first respondent from seeking to rely upon or enforce the adjudication decision in any manner;4. an order that the monies paid into court by the applicant on or about 1 February 2013, together with any accretions thereto, be paid out to the applicant;5. a direction that the applicant and the first respondent file and serve any written submissions as to costs within 14 days; and6. an order that costs be reserved.7.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS –Employees of the subcontractor first respondent created a substantial safety risk in breach of instructions given by the applicant – The sub-contract allowed termination by the applicant for the first respondent’s default “in the performance or observance of any serious condition” – The applicant terminated its sub-contract with the first respondent, alleging the first respondent’s safety breach contravened a “serious condition” – A subsequent payment claim by the first respondent was upheld by an adjudicator under the Building and Construction Industry Payments Act 2004 – Whether the adjudicator had jurisdiction to determine the adjudication application – Whether the sub-contract had been validly terminated for breach of a “serious condition” Building and Construction Industry Payments Act2004 (Qld), s 12, s 26, s 99 Cohen & Co v Ockerby & Co Ltd (1917) 24 CLR 288, considered Re Dingjan; ex parte Wagner (1995) 183 CLR 323, cited Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359, cited Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd(2012) QCA 276, cited Walton Constructions (Qld) Pty Ltd v Corrosion Control Technology Pty Ltd (2012) 2 Qd R 90, [2011] QSC 67, applied
COUNSEL:	GI Thomson for the applicant PJ Arthur (sol) for the first respondent No appearance for the second or third respondents
SOLICITORS:	Norton Rose for the applicant Mooloolaba Law for the first respondent No appearance for the second or third respondents