Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd - [2019] QCA 177

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 2019

DIVISION:

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, cited

COUNSEL:

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 respondent

SOLICITORS:

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…

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] QCA 177
Decision Date: 6 September 2019

CaseChat Overview and Summary

In the case of Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd, the dispute centred on the validity of adjudication applications in a construction dispute. The matter was heard in the Court of Appeal in Queensland. The appellant, Niclin Constructions, challenged the primary judge’s decision that the adjudicator lacked jurisdiction to decide the adjudication applications because they were not effectively served within the required timeframe. The issue at hand was whether the service of the adjudication application "as soon as possible" is a jurisdictional requirement and whether the service of the applications twelve business days after they were lodged met this requirement.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Act requires service of a copy of an adjudication upon a respondent. The timing of the adjudication response (and therefore the process of adjudication) depends on the receipt by a respondent of a copy of the adjudication application.[21] In the light of the concession made by Niclin about the primary judge’s finding on jurisdiction in the absence of effective service, it is unnecessary to dwell upon any subtle difference between being served with a copy of an adjudication application and receiving it. The consequence is the same for the jurisdiction of the adjudicator to decide the application.[21]The Act, s 24A.Conclusion and orders The primary judge did not err in concluding that a requirement to serve “as soon as possible” applied and that, as a matter of fact, Niclin did not comply with it. Consistent with Niclin’s acceptance of the primary judge’s finding that service under s 21(5) is required before an adjudication may be validly undertaken, the primary judge was correct to conclude that, in the absence of effective service, the adjudicator did not have jurisdiction to determine the adjudication applications. Because the appeal should be dismissed, no occasion arises to consider the issue of remitter. I would order: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.

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] 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 2019
DIVISION:	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, cited
COUNSEL:	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 respondent
SOLICITORS:	CDI Lawyers for the appellant Thomson Geer for the first respondent No appearance for the second respondent