SUPREME COURT OF QUEENSLAND
CITATION:
Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd & Anor [2019] QCA 177
PARTIES:
NICLIN CONSTRUCTIONS PTY LTD
ACN 614 074 065
(appellant)v
SHA PREMIER CONSTRUCTIONS PTY LTD
ACN 056 777 318
(first respondent)
CHRISTOPHER TAYLOR
Adjudicator No. 1023553
(second respondent)FILE NO/S:
Appeal No 2759 of 2019
SC No 786 of 2019DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane – [2019] QSC 91 (Ryan J)DELIVERED ON:
6 September 2019
DELIVERED AT:
Brisbane
HEARING DATE:
1 August 2019
JUDGES:
Gotterson and Philippides JJA and Applegarth J
ORDERS:
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of and incidental to the appeal, including the applications to adduce further evidence relevant to the question of remitter.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – OTHER MATTERS – where the appellant failed to serve the respondent with its adjudication applications until 12 business days after the applications were lodged – where the adjudicator concluded he did not have jurisdiction to decide the applications because there had not been effective service in accordance with s 21(5) of the Building and Construction Industry Payments Act 2004 (Qld) – where the appellant sought a declaration that the decisions of the adjudicator were void – where the primary judge found that compliance with s 21(5) is required for a valid adjudication decision – where s 21(5) contains no express timeframe for service – where the primary judge applied s 38(4) of the Acts Interpretation Act 1954 (Qld) and found service must occur “as soon as possible” after lodging an application – where the appellant submits that the primary judge erred in in applying s 38(4) and in finding that 12 business days was not as soon as possible – whether service of an adjudication application as soon as possible after it is made is necessary to confer jurisdiction on an adjudicator – whether service of an adjudicator’s application twelve business days after the adjudication application was “as soon as possible”
Acts Interpretation Act 1954 (Qld), s 38(4)
Building and Construction Industry Payments Act 2004 (Qld), s 21(5), s 21(6)Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485; [2002] HCA 42, cited
ChaseOyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190, cited
R J Neller Building Pty Ltd v Ainsworth [2009] 1 Qd R 390; [2008] QCA 397, citedCOUNSEL:
S B Whitten with C H Matthews for the appellant
M H Hindman QC, with H Clift, for the first respondent
No appearance for the second respondentSOLICITORS:
CDI Lawyers for the appellant
Thomson Geer for the first respondent
No appearance for the second respondent
GOTTERSON JA: I agree with the orders proposed by Applegarth J and with the reasons given by his Honour.
PHILIPPIDES JA: I…
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- Case
- [2019] QCA 177
- Decision Date
CaseChat Overview and Summary
The court examined the statutory provisions, particularly section 21(5) of the Building and Construction Industry Payments Act 2004 (Qld), which mandates the service of an adjudication application on the respondent. The court acknowledged that while section 21(5) does not specify a timeframe, the application of section 38(4) of the Acts Interpretation Act 1954 (Qld) necessitates service "as soon as possible." The primary judge determined that service twelve business days after the applications were lodged did not meet the "as soon as possible" requirement. The appellant argued that the primary judge erred in applying section 38(4) and in finding that 12 business days was not "as soon as possible." However, the court upheld the primary judge's findings, concluding that the requirement to serve the application "as soon as possible" is jurisdictional and that the appellant's delay in service was indeed not "as soon as possible."
The Court of Appeal dismissed the appeal, affirming that the primary judge correctly found the adjudicator did not have jurisdiction due to the non-compliance with the service requirement. The court ordered that the appeal be dismissed and that the appellant pay the first respondent’s costs of and incidental to the appeal, including the costs related to the applications to adduce further evidence relevant to the question of remitter. This decision reinforces the necessity for strict adherence to statutory timelines in construction adjudication processes.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of and incidental to the appeal, including the applications to adduce further evidence relevant to the question of remitter.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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