Merym Pty Ltd and Methodist Ladies College

MERYM PTY LTD and METHODIST LADIES COLLEGE [2008] WASAT 164

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 164
Act:	CONSTRUCTION CONTRACTS ACT 2004 (WA)
Case No:	CC:644/2008	Heard:	17 JUNE 2008
Coram:	MR C RAYMOND (SENIOR MEMBER)	Delivered:	21/07/08
No of pages:	14	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	MERYM PTY LTD METHODIST LADIES COLLEGE
Catchwords:	Construction Contracts Act 2004 (WA) Whether previously rejected claims amenable to adjudication by reason of superintendent's failure to certify in time Whether decision to dismiss characterised as a decision made under s 31(2)(a) of Construction Contracts Act 2004 (WA)
Legislation:	Construction Contracts Act 2004 (WA), s 31(2)(a), s 31(2)(b), s 35(2)(b), s 46, s 46(1)
Case References:	Algons Engineering Pty Ltd v Abi Group [1997] NSWSC 478 Brewarrina Shire Council v Beckhaus Civil Pty Ltd (2003) 56 NSWLR 576 Daysea Pty Ltd v Watpac Australia Pty Ltd [2001] QCA 49 Devaugh Pty Ltd v Lamac Developments Pty Ltd [1990] WASC 280 Diploma Construction Pty Ltd v Esslemont Nominees Pty Ltd [2006] WASAT 350 Silent Vector Pty Ltd Trading as Sizer Builders and John Squarcini [2008] WASAT 39
Orders	1. The application for the review of the adjudication decision dated 15 April 2008 is dismissed.
Summary	The applicant applied to the State Administrative Tribunal for the review of the decision of an adjudicator pursuant to s 46(1) of the Construction Contracts Act 2004 (WA).,The applicant contended that the adjudicator had wrongly dismissed part of two progress claims by not determining that the superintendent's failure to issue a progress claim certificate within the stipulated time limit resulted in a payment dispute which had arisen within 28 days of the making of the application for adjudication. Further, it was contended that a claim in respect of three variation orders included as part of the payment claims had in any event never been previously submitted and had therefore been made in time.,The State Administrative Tribunal concluded that the failure to certify a progress claim did not result in the amount of the claim becoming payable, unless the claim had been properly submitted with supporting evidence and such other information as might reasonably be required by the superintendent. It was therefore necessary to consider the particular claims in dispute.,In relation to a variation order for extra costs associated with the excavation of rock, the State Administrative Tribunal found that the claim had been incorporated in a previous progress claim and had been rejected by the superintendent. As no further evidence or information had been provided when the claim was repeated, no entitlement arose through the payment mechanism provisions of the contract. Although the adjudicator had purported to make the decision to dismiss as part of his consideration of the merits of the claim, after expressly deciding that the application did not fall to be dismissed under s 31(2)(a) of the Construction Contracts Act 2004, the State Administrative Tribunal concluded that it had to be properly characterised as a decision to dismiss…