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Minesco Pty Ltd v Anderson Sunvast Hong Kong Ltd

Minesco Pty Ltd v Anderson Sunvast Hong Kong Ltd

Case [2017] VSC 299 2 June 2017

Judicial Review

Natural Justice & Procedural Fairness

Admissibility of Evidence

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST

S ECI 2017 000009

MINESCO PTY LTD (AS TRUSTEE FOR THE TARCISCO CREMASCO UNIT TRUST) (ABN 63 609 431 256)	Plaintiff
v
ANDERSON SUNVAST HONG KONG LTD	First Defendant
And
THOMAS JONES	Second Defendant

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 MAY 2017
DATE OF JUDGMENT:	2 JUNE 2017
CASE MAY BE CITED AS:	MINESCO PTY LTD v ANDERSON SUNVAST HONG KONG LTD
MEDIUM NEUTRAL CITATION:	[2017] VSC 299

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ADMINISTRATIVE LAW — Judicial review — Delay in commencing proceeding — Extension of time — Supreme Court (General Civil Procedure) Rules 2015 (Vic) — O 56 — r 56.02(3).

ADMINISTRATIVE LAW — Building and Construction Industry Security of Payment Act 2002 (Vic) — Natural justice — Whether lack of appearance of procedural fairness in adjudication process amounts to breach of natural justice.

BUILDING AND CONSTRUCTION —Claim for relief in the nature of certiorari quashing an adjudication determination — Whether adjudicator denied respondent natural justice — The Hickory principle (Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd & Anor (2009) 26 VR 112, 143 [142] considered — Building and Construction Industry Security of Payment Act 2002 (Vic) s 21.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M H Whitten QC with Ms H J E Nash	Ganci Huggett Lawyers
For the First Defendant	Mr R Andrew	Giannakopoulos Solicitors

HIS HONOUR:

Introduction

This proceeding concerns an application for judicial review of an adjudication determination made under the Building and Construction Industry Security of Payment Act 2002 (Vic) (‘the Act’).

The Plaintiff, Minesco Pty Ltd (‘Minesco’), is a company specialising in the supply of windows and material cladding for large-scale construction projects.

Minesco was contracted to supply façade works for the construction of the Monash Children’s Hospital in Clayton, Victoria (the ‘Project’).

In March 2015, Minesco entered into a design and fabrication subcontract with the First Defendant, Anderson Sunvast Hong Kong Ltd (‘Anderson’), for the manufacture, supply and delivery of curtain wall units from China for the Project, for the sum of $1,824,936.00.

On 2 August 2016, Anderson served a final payment claim on Minesco for the sum of $238,976.05 in respect of its works. The claim was endorsed as a final payment claim and was expressed to be a payment claim ‘made under the Building and Construction Industry Security of Payment Act (2002)’ in accordance with s 14(2)(e) of the Act.

On 9 August 2016, Minesco served a payment schedule under s 15 of the Act, in which the schedule amount was determined as ‘NIL’ on the basis of an alleged previous agreement between the parties, the upshot of which was alleged to be that Anderson owed Minesco $80,876, which was due and payable.

On 23 August 2016, Anderson submitted an Adjudication Application pursuant to s 18 of the Act to an authorised nominating authority, Adjudicate Today Pty Ltd (the ‘Nominating Authority’).

On 29 August 2016, the…

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 Minesco Pty Ltd v Anderson Sunvast Hong Kong Ltd

Details

AGLC: Minesco Pty Ltd v Anderson Sunvast Hong Kong Ltd [2017] VSC 299
Case: [2017] VSC 299
Decision Date: 2 JUNE 2017

CaseChat Overview and Summary

In the matter of Minesco Pty Ltd versus Anderson Sunvast Hong Kong Ltd, the dispute arose from a building and construction contract, and the case was heard in the Supreme Court of Victoria. Minesco sought judicial review of an adjudication determination, arguing that the process lacked procedural fairness, which it claimed amounted to a breach of natural justice. The primary contention was whether the adjudicator's actions denied Minesco natural justice, thereby invalidating the adjudication decision.

The court needed to determine whether the adjudicator's process breached the principles of natural justice under the Building and Construction Industry Security of Payment Act 2002 (Vic). Specifically, it had to consider whether the lack of procedural fairness rendered the adjudication invalid. The court also examined the Hickory principle, drawing from the case of Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd & Anor, which established criteria for assessing procedural fairness in adjudication processes.

The Supreme Court found that the adjudicator had indeed denied Minesco natural justice by not allowing them an opportunity to respond to critical evidence presented by the other party. The court concluded that this procedural lapse amounted to a significant breach of natural justice. Consequently, the court quashed the adjudication determination, aligning with the principle established in Hickory Developments. The court held that such a denial of procedural fairness could invalidate an adjudication determination.

The final order of the court was to quash the adjudication determination, thereby providing Minesco with the relief it sought. The court's decision underscored the importance of procedural fairness in adjudication processes, reinforcing the need for adjudicators to adhere to natural justice principles.

Orders