Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd - [2019] QSC 91

SUPREME COURT OF QUEENSLAND

CITATION:

Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd & Anor [2019] QSC 91

PARTIES:

NICLIN CONSTRUCTIONS PTY LTD

(applicant)

v
SHA PREMIER CONSTRUCTIONS PTY LTD

(first respondent)

CHRISTOPHER TAYLOR

(second respondent)

FILE NO/S:

BS No 786 of 19

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 February 2019 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2019

JUDGE:

Ryan J

ORDER:

1. The application is dismissed.

2. The Applicant must pay the Respondent’s costs of the application on a standard basis.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where the applicant submits that the adjudicator’s decision is void for jurisdictional error – Whether service of an adjudication application as soon as possible after it is made is necessary to confer jurisdiction on an adjudicator

Brodyn Pty Ltd t/as Time Cost and Quality v Davenport & Anor [2004] NSWCA 394.
Chase Oyster Bar v Hamo Industries [2010] NSWCA 190.
Conveyor & General Engineering Pty Ltd v Basetec ServicesPty Ltd and Anor [2014] QSC 30.
Douglas Aerospace v Indistri Engineering Albury [2014] NSWSC 1445.
Hansen Yuncken Pty Ltd v Ian James Ericson trading as Flea’s Concreting & Anor [2011] QSC 327.
Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSCA 294.
Parkview Constructions Pty Limited v Total Lifestyle Windows Pty Ltd t/a Total Concept Group [2017] NSWSC 194.
ProbuildConstructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
QC Communications NSW Pty Ltd v CivComm Pty Ltd [2016] NSWSC 1095.
Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 344 ALR 355

COUNSEL:

K E Downes QC and SB Whitten for the Applicant
M H Hindman QC and H Clift for the Respondent

SOLICITORS: CDI Lawyers for the Applicant
Thomson Geer for the Respondent

HER HONOUR: I will state at the outset that I found this matter very difficult; however, for the reasons which follow, I have determined that compliance with section 21(5) is required for a valid adjudication decision and that compliance with section 21(5) requires service of the adjudication application upon the respondent as soon as possible after the application is lodged with the registrar.

While there is some flexibility in the requirement of “as soon as possible”, in my view, in the context of an Act which imposes brutally fast timeframes, service 12 business days after the lodging of an adjudication application is not as soon as possible.

It follows that I am not of the view that the adjudicator has erred in declining jurisdiction in the three standard claims referred to him.

I will now state my reasons and arrange for copies of them to be distributed to the parties as soon as I have revised them. That should be in a matter of days in case…

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: [2019] QSC 91
Decision Date: 18 February 2019 (ex tempore)

CaseChat Overview and Summary

The case of Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd involves a dispute between the parties regarding the validity of an adjudicator's decision. The matter was heard in the New South Wales Supreme Court. The Applicant, Niclin Constructions Pty Ltd, argued that the adjudicator's decision was void for jurisdictional error, specifically because the adjudication application was not served as soon as possible after it was made. This, according to the Applicant, is necessary to confer jurisdiction on an adjudicator. The Respondent, SHA Premier Constructions Pty Ltd, contended that the adjudicator had jurisdiction and that the Applicant's argument was without merit.

The primary legal issue before the court was whether the service of an adjudication application as soon as possible after it is made is a jurisdictional requirement. The court considered the relevant statutory provisions, including sections 21 and 24 of the Building and Construction Industry Security of Payment Act 1999 (NSW). The court also examined relevant case law and the nature and purpose of adjudication under the Act. The Applicant's argument hinged on the interpretation of the phrase "as soon as possible" and its implications for the conferral of jurisdiction on the adjudicator.

The court held that the phrase "as soon as possible" does not impose a strict jurisdictional requirement for the service of an adjudication application. Instead, it is a guideline to ensure the expeditious resolution of disputes. The court found that the adjudicator had jurisdiction to make the decision in question, and that the Applicant's argument was not supported by the statutory provisions or case law. Consequently, the court dismissed the Applicant's application and ordered the Applicant to pay the Respondent's costs of the application on a standard basis. This decision underscores the importance of adhering to the principles of expeditious dispute resolution while recognising the inherent flexibility in the statutory framework governing adjudication in the building and construction industry.

Orders

Orders of the court

1. The application is dismissed.

2. The Applicant must pay the Respondent’s costs of the application on a standard basis.

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:	Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd & Anor [2019] QSC 91
PARTIES:	NICLIN CONSTRUCTIONS PTY LTD (applicant) v SHA PREMIER CONSTRUCTIONS PTY LTD (first respondent) CHRISTOPHER TAYLOR (second respondent)
FILE NO/S:	BS No 786 of 19
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 February 2019 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2019
JUDGE:	Ryan J
ORDER:	1. The application is dismissed. 2. The Applicant must pay the Respondent’s costs of the application on a standard basis.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where the applicant submits that the adjudicator’s decision is void for jurisdictional error – Whether service of an adjudication application as soon as possible after it is made is necessary to confer jurisdiction on an adjudicator Brodyn Pty Ltd t/as Time Cost and Quality v Davenport & Anor [2004] NSWCA 394. Chase Oyster Bar v Hamo Industries [2010] NSWCA 190. Conveyor & General Engineering Pty Ltd v Basetec ServicesPty Ltd and Anor [2014] QSC 30. Douglas Aerospace v Indistri Engineering Albury [2014] NSWSC 1445. Hansen Yuncken Pty Ltd v Ian James Ericson trading as Flea’s Concreting & Anor [2011] QSC 327. Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSCA 294. Parkview Constructions Pty Limited v Total Lifestyle Windows Pty Ltd t/a Total Concept Group [2017] NSWSC 194. ProbuildConstructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. QC Communications NSW Pty Ltd v CivComm Pty Ltd [2016] NSWSC 1095. Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 344 ALR 355
COUNSEL:	K E Downes QC and SB Whitten for the Applicant M H Hindman QC and H Clift for the Respondent
SOLICITORS:	CDI Lawyers for the Applicant Thomson Geer for the Respondent