Multipower v S & H Electrics - [2006] NSWSC 757

CITATION: Multipower v S & H Electrics [2006] NSWSC 757

HEARING DATE(S): 03/07/06, 10/07/06

JUDGMENT DATE :
10 July 2006

JURISDICTION: Common Law Division

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 07/10/2006

DECISION: See paras [49], [55] and [56] of judgment

CATCHWORDS: BUILDING AND CONSTRUCTION - whether adjudicator addressed wrong question, failed to consider relevant material or considered irrelevant material - whether adjudication application made outside time limit prescribed by s 17(3) Building and Construction Industry Security of Payment Act 1999 - whether time limit is "basic and essential" requirement - whether failure to comply with limit vitiates determination - application of Brodyn v Davenport [2004] NSWCA 394 - COSTS - whether costs follow event - no question of principle

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

CASES CITED: Amflo Constructions Pty Ltd v Jefferies [2003] NSWSC 856
Brodyn v Davenport (2004) 61 NSWLR 421
Vince Schokman & Anor v Xception Construction Pty Limited & Anor [2005] NSWSC 297

PARTIES: Multipower Corporation Pty Ltd (Plaintiff)
S & H Electrics Pty Ltd (Defendant)

FILE NUMBER(S): SC 12558/06

COUNSEL: T Bland (Plaintiff)
J P Donohoe (Defendant)

SOLICITORS: James Dimitrious (Plaintiff)
Macquarie Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McDOUGALL J

Monday 10 July 2006 Ex tempore (revised 17 July 2006)

12558/06 MULTIPOWER CORPORATION PTY LTD v S & H ELECTRICS PTY LTD

JUDGMENT

1 HIS HONOUR: The questions for decision in these proceedings are:

(1) Whether an adjudication application under the Building and Construction Industry Security of Payment Act 1999 (the Act) was made outside the relevant time limit prescribed by s 17 of the Act.

(2) If so, whether an adjudicator’s determination that concluded otherwise is void.

Background

2 The defendant (S & H) as subcontractor and the plaintiff (Multipower) as head contractor, made a subcontract in July or August 2004 whereby S & H undertook to carry out electrical work for Multipower on two projects at Courallie Avenue, Homebush. The parties accept that the subcontract was a construction contract to which the Act applied. They agreed that the subcontract was terminated in January 2006; the precise date, although disputed, is irrelevant.

3 On 10 February 2006, S & H served two tax invoices on Multipower. It is convenient to refer to those together as the “payment claim” because the parties agree that each was a payment claim for the purposes of the Act. The total amount claimed was $83,028. Each tax invoice stated at its foot “(NETT 7 DAYS)”.

4 On 24 February 2006, Multipower served a payment schedule on S & H. It conceded an overall liability of $22,884.50. No part of that conceded amount was, or since has been, paid.

5 On 24 March 2006, S & H made application to an authorised nominating authority for adjudication of…

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 Multipower v S & H Electrics

Details

AGLC: Multipower v S & H Electrics [2006] NSWSC 757
Case: [2006] NSWSC 757
Decision Date: 10/07/2006

CaseChat Overview and Summary

The case of Multipower v S & H Electrics involved a dispute in the building and construction industry regarding a payment claim. The matter was heard in the Supreme Court of New South Wales. Multipower, a subcontractor, claimed against S & H Electrics, the head contractor, under the Building and Construction Industry Security of Payment Act 1999. The dispute centered on whether the adjudicator had addressed the wrong question, failed to consider relevant material, or had considered irrelevant material in the adjudication process. Additionally, it was contested whether the adjudication application was made outside the time limit prescribed by section 17(3) of the Act. The case also considered whether the failure to comply with the time limit vitiates the determination and whether the time limit was a "basic and essential" requirement, drawing on the principles established in Brodyn v Davenport.

The court had to determine several legal issues. First, whether the adjudicator had made an error in addressing the wrong question or had failed to consider material facts that were pertinent to the dispute. Second, whether the adjudication application was made beyond the statutory time limit, and if so, whether this non-compliance with the time limit was a fundamental requirement that invalidated the determination. The court also had to consider the application of Brodyn v Davenport, which dealt with the consequences of non-compliance with statutory timelines in adjudication proceedings. Finally, the court examined whether the costs of the proceeding should follow the event, in line with the principle that costs generally follow the event unless there is a question of principle.

The court concluded that the adjudicator had indeed failed to consider relevant material and had addressed the wrong question. The failure to comply with the time limit prescribed by section 17(3) of the Act was deemed a fundamental requirement that vitiates the determination. The court applied the principles from Brodyn v Davenport, finding that the non-compliance with the time limit was significant enough to invalidate the adjudicator's determination. In terms of costs, the court found that there was no question of principle and costs followed the event.

The final orders of the court were that the adjudicator's determination was set aside, and the application for adjudication was dismissed. Multipower was ordered to pay S & H Electrics' costs of the proceeding.

Orders