Nebmas P/L v Sub Divide P/L - [2009] QSC 92

SUPREME COURT OF QUEENSLAND

CITATION:

Nebmas P/L v Sub Divide P/L & Ors [2009] QSC 92

PARTIES:

NEBMAS PTY LIMITED ACN 109 907 646

(Applicant)

v

SUB DIVIDE PTY LIMITED ACN 107 980 503

(First Respondent)

ADJUDICATE TODAY PTY LIMITED
ACN 109 605 021

(Second Respondent)

CALLUM CAMPBELL

(Third Respondent)

FILE NO/S:

BS 3991/09

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

27 April 2009

JUDGE:

McMurdo J

ORDER:

1. The originating application is dismissed.

2. The interlocutory injunction restraining the first respondent from filing the adjudicator’s certificate is discharged.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – SETTLEMENT OF DISPUTES – where a condition in the Tender Document is inconsistent with a condition in the general contract – whether condition in the Tender Document prevails

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PERMISSIVE, DIRECTORY AND MANDATORY POWERS – where s 21(2) of the Building and Construction Industry Payments Act2004 (Qld) states that an adjudication application “can not be made” unless the claimant gives the respondent a notice within a specified time – whether notice outside of time renders adjudication void

Building and Construction Industry Payments Act2004 (Qld), s 21(2)

Building and Construction Industry Security of Payment Act 1999 (NSW), s 17(2)

Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421

Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229

JAR Developments Pty Ltd v Castleplex Pty Ltd [2007] NSWSC 737

Kell & Rigby Pty Ltd v Guardian International Properties Pty Ltd [2007] NSWSC 554

Multipower v S & H Electrics [2006] NSWSC 75

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

COUNSEL:

C Wilson for the applicant

L Bowden for the first respondent

SOLICITORS:

McCullough Robertson for the applicant

No appearance for the first respondent

The applicant is a contractor undertaking building work for the Ipswich City Council. The first respondent was its subcontractor. It made a claim against the applicant for payment under the Building and Construction Industry Payments Act2004 (Qld) (“the Act”). Subsequently it made an adjudication application which the second respondent referred to the third respondent as the adjudicator. The adjudicator upheld the first respondent’s case. The adjudicated amount was $195,877.88.

The applicant seeks a declaration that the decision is void. Its case is that the claimant (the first respondent) did not give the notice required by s 21(2)(a) of the Act within the period prescribed by that provision. Accordingly, it argues, the adjudication application was of no effect and nor is the adjudicator’s decision.

In essence there are two questions here. The first is whether it is demonstrated that the notice purportedly given under s 21(2)(a) was given out of time. The adjudicator held that it was given within time. The second is whether the decision is void if the notice was given out of time.

Section 21…

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.

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Details

Case: [2009] QSC 92
Decision Date: 1 May 2009

CaseChat Overview and Summary

Nebmas P/L filed an originating application against Sub Divide P/L, seeking to prevent the latter from filing a certificate of an adjudicator's decision. The primary dispute arose from the inconsistency between a condition in the tender document and a condition in the general contract. The court was tasked with determining whether the condition in the tender document, which was more favourable to Nebmas, should prevail over the general contract's condition. The court also had to address whether the notice given by Nebmas outside the specified time under section 21(2) of the Building and Construction Industry Payments Act 2004 (Qld) rendered the adjudication void.

The court examined the contractual documents and found that the condition in the tender document was indeed inconsistent with the general contract. The court considered the nature of the inconsistency and the importance of the condition to the parties. The court concluded that the condition in the tender document should prevail because it was more specific and directly related to the particular project. The court further determined that the notice provided outside the specified time did not render the adjudication void, as section 21(2) of the Act was directory rather than mandatory. Consequently, the adjudicator's decision remained valid.

The court dismissed the originating application and discharged the interlocutory injunction. The court found that Nebmas's application did not meet the criteria for preventing the filing of the adjudicator's certificate. The court held that the adjudicator's decision was valid, and the certificate could be filed. This decision ensured that the contractual process was followed correctly, and the adjudicator's authority was upheld.

Orders

Orders of the court

1. The originating application is dismissed.

2. The interlocutory injunction restraining the first respondent from filing the adjudicator’s certificate is discharged.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Nebmas P/L v Sub Divide P/L & Ors [2009] QSC 92
PARTIES:	NEBMAS PTY LIMITED ACN 109 907 646 (Applicant) v SUB DIVIDE PTY LIMITED ACN 107 980 503 (First Respondent) ADJUDICATE TODAY PTY LIMITED ACN 109 605 021 (Second Respondent) CALLUM CAMPBELL (Third Respondent)
FILE NO/S:	BS 3991/09
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	1 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	27 April 2009
JUDGE:	McMurdo J
ORDER:	1. The originating application is dismissed. 2. The interlocutory injunction restraining the first respondent from filing the adjudicator’s certificate is discharged.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – SETTLEMENT OF DISPUTES – where a condition in the Tender Document is inconsistent with a condition in the general contract – whether condition in the Tender Document prevails STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PERMISSIVE, DIRECTORY AND MANDATORY POWERS – where s 21(2) of the Building and Construction Industry Payments Act2004 (Qld) states that an adjudication application “can not be made” unless the claimant gives the respondent a notice within a specified time – whether notice outside of time renders adjudication void Building and Construction Industry Payments Act2004 (Qld), s 21(2) Building and Construction Industry Security of Payment Act 1999 (NSW), s 17(2) Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 JAR Developments Pty Ltd v Castleplex Pty Ltd [2007] NSWSC 737 Kell & Rigby Pty Ltd v Guardian International Properties Pty Ltd [2007] NSWSC 554 Multipower v S & H Electrics [2006] NSWSC 75 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
COUNSEL:	C Wilson for the applicant L Bowden for the first respondent
SOLICITORS:	McCullough Robertson for the applicant No appearance for the first respondent