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Modscape Pty Ltd v Sive

Modscape Pty Ltd v Sive

Case [2017] TASSC 71 11 December 2017

Breach of Contract

Admissibility of Evidence

Natural Justice & Procedural Fairness

Construction Law

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[2017] TASSC 71

COURT: SUPREME COURT OF TASMANIA

CITATION: Modscape Pty Ltd v Sive [2017] TASSC 71

PARTIES:  MODSCAPE PTY LTD
  v
  SIVE, Jonathan

FILE NO:  50/2017
DELIVERED ON:  11 December 2017
DELIVERED AT:  Hobart
HEARING DATE:  17 October 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Contracts – Building, engineering and related contracts – Remuneration – Statutory regulation of entitlement to and recovery of progress payments – Adjudication of payment claims – Adjudicator deciding dispute on points not contended for by either party – Inadequate reasons – Denial of natural justice.

Building and Construction Industry Security of Payment Act2009 (Tas), s 25(2), (4)(b).
Musico v Davenport [2003] NSWSC 977; Coordinated Constructions Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229, 21 BCL 364; Procorp Civil Pty Ltd v Napoli Excavations and Contracting Pty Ltd [2006] NSWSC 205; Brodyn Pty Ltd v Davenport [2004] NSWCA 394, 61 NSWLR 421; Timwin Construction v Facade Innovations [2005] NSWSC 548, 21 BCL 383; Laing O'Rourke Australia Construction Pty Ltd v H & M Engineering & Construction Pty Ltd [2010] NSWSC 818; Clyde Bergemann v Varley Power [2011] NSWSC 1039; Theiss Pty Ltd v Warren Brothers Earthmoving Pty Ltd [2012] QSC 373, referred to.
Aust Dig Contracts [279.6]

REPRESENTATION:

Counsel:
             Applicant:  C Groves
             Fairbrother Pty Ltd:  B J Murphy
Solicitors:
             Applicant:  Dobson Mitchell Allport
             Fairbrother Pty Ltd:  Tierney Law

Judgment Number: [2017] TASSC 71
Number of paragraphs: 62

Serial No 71/2017
File No 50/2017

MODSCAPE PTY LTD v JONATHAN SIVE

REASONS FOR JUDGMENT BLOW CJ

11 December 2017

This case concerns a dispute as to the validity of an adjudication determination made, or purportedly made, pursuant to the Building and Construction Industry Security of Payment Act 2009 ("the Act"). The determination related to a dispute between Modscape Pty Ltd, the applicant in these proceedings, and a company named Fairbrother Pty Ltd. The respondent to this application, Jonathan Sive, was the adjudicator who made the impugned determination. The applicant is seeking an order in the nature of certiorari for the quashing of the determination. Alternatively, it seeks a declaration that the determination is void.
On 22 February 2017, Holt AsJ made a general order requiring the respondent to show cause why the relief sought should not be granted. The respondent has advised that he does not intend to participate in the proceedings, and that he will submit to the orders of the Court, except in relation to costs. Fairbrother Pty Ltd was represented by counsel at the hearing before me. It contends that the determination was unimpeachable and that the proceedings should therefore be dismissed.
The background to this dispute can be summarised as follows:
·     Some years ago the Tasmanian Government decided to redevelop the Royal Hobart Hospital.
·     The State engaged Fairbrother Pty Ltd as a head contractor to construct a temporary building for the purpose of the redevelopment work.
·     Fairbrother entered into a subcontract…

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 Modscape Pty Ltd v Sive

Details

AGLC: Modscape Pty Ltd v Sive [2017] TASSC 71
Case: [2017] TASSC 71
Decision Date: 11 December 2017

CaseChat Overview and Summary

Modscape Pty Ltd initiated proceedings against Sive, a construction company, concerning a dispute over payments under a contract for construction works. The dispute was adjudicated by an adjudicator appointed under the Building and Construction Industry Security of Payment Act 2002 (Vic). The primary issue before the court was whether the adjudicator's decision to grant payment to Modscape was valid given that the decision was based on points not argued by either party, and whether the adjudicator provided adequate reasons, thereby denying Modscape natural justice.

The court examined whether the adjudicator's decision was in accordance with the statutory provisions under which it was made. The court noted that the adjudicator made findings on points that were not argued by either party and provided reasons that were inadequate and failed to address the specific contentions made by the parties. The court held that the adjudicator's failure to address the actual points of contention and provide adequate reasons amounted to a denial of natural justice. This failure rendered the adjudicator's decision invalid, as it did not comply with the statutory requirements for the adjudication process.

Consequently, the court found that the adjudicator's decision was not binding on the parties and could not be enforced. The court also noted that Modscape was not precluded from pursuing its claim for payment through other available legal processes. The court ordered that the matter be remitted to a new adjudicator for a fresh determination of the payment claim, in accordance with the statutory requirements.

Orders