MKA Bowen v Carelli Constructions

[2019] VSC 436

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
COMMERCIAL COURT
TECHNOLOGY, ENGINEERING & CONSTRUCTION LIST Not Restricted

S ECI 2019 0836  

MKA BOWEN INVESTMENTS PTY LTD (ACN 600 897 792)

Plaintiff

v  

CARELLI CONSTRUCTIONS PTY LTD (ACN 606 840 331)

and

PHILIP MARTIN (in his capacity as Adjudicator appointed under
s 20(1) of the Building and Construction Industry Security of Payment Act 2002 (Vic))

First Defendant

Second Defendant

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2019
DATE OF JUDGMENT:	24 September 2019
CASE MAY BE CITED AS:	MKA Bowen v Carelli Constructions
MEDIUM NEUTRAL CITATION:	[2019] VSC 436

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ADMINISTRATIVE LAW – Judicial review – Relief in the nature of certiorari – Whether Adjudication Determination is vitiated by jurisdictional error as a result of a payment claim not served ‘on and from’ the relevant reference date – Whether an Adjudication Determination is vitiated by jurisdictional error as a result of a failure to determine that a payment claim was made because it was the second payment claim within the one reference date – Adjudication Determination quashed as it was not served on and from the relevant reference date – Building and Construction Industry Security of Payment Act 2002 (Vic), ss 9(1), 9(2)(a), 14(1), 14(8), 28Q.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Connolly	HWL Ebsworth Lawyers
For the First Defendant	Mr N Phillpott	Gadens Lawyers

HIS HONOUR:

Application

1. By Originating Motion and Summons dated 27 February 2019, MKA Bowen Investments Pty Ltd (plaintiff) seeks orders quashing the Adjudication Determination dated 15 February 2019[1] (Adjudication Determination) made by the second defendant, Mr Philip Martin[2] (Adjudicator), on the grounds that:

   [1]CB968-CB989.

   [2]By letter dated 8 March 2019 the second defendant advised the Court he does not intend to take any active role in the proceeding and will abide the decision of the Court, save for any costs order being considered against him.

(a)        Ground 1

The Adjudicator committed jurisdictional error, alternatively acted ultra vires or erred in law, in determining that the payment claim served by the first defendant, Carelli Constructions Pty Ltd, on or about 21 December 2018 (December Payment Claim) was valid in circumstances where it was not served ‘on and from’ the relevant ‘reference date’; and

(b)        Ground 2

Further, and in the alternative, the Adjudicator committed jurisdictional error, alternatively acted ultra vires or erred in law, in failing to determine that the December Payment Claim was in breach of s 14(8) of the Building and Construction Industry Security of Payment Act 2002 (Vic) (SoP Act (Vic)) in circumstances where it was the second payment claim within the one reference date as prohibited by that provision.

1. By its Originating Motion the plaintiff seeks:

(a)        to restrain Carelli Constructions Pty Ltd (first defendant), whether by itself, its servants, or otherwise howsoever from seeking to enforce or take action under the SoP Act (Vic) in relation to the Adjudication Determination;

(b) to restrain the Adjudicator whether by himself, his servants or otherwise howsoever…