Northside Projects Pty Ltd v Trad - [2009] QSC 264

SUPREME COURT OF QUEENSLAND

CITATION:

Northside Projects P/L v Trad & Anor [2009] QSC 264

PARTIES:

NORTHSIDE PROJECTS PTY LTD ACN 105 629 589
(applicant)
v
MICHAEL MOHAMMAD TRAD
(first respondent)
ANDREW BRUCE WALLACE
(second respondent)

FILE NO/S:

1176 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2009

JUDGE:

Martin J

ORDER:

IT IS DECLARED THAT THE ADJUDICATION DECISION ISSUED BY ANDREW WALLACE DATED 17 DECEMBER 2008 IN RESPECT OF ADJUDICATION APPLICATION NUMBER 1057877_777 MADE BY MICHAEL TRAD AGAINST NORTHSIDE PROJECTS PTY LTD IS VOID.

CATCHWORDS:

BUILDING AND ENGINEERING CONTRACTS – ADJUDICATION – Where the first respondent issued two identical payment claims with the same reference date – Where the applicant issued payment schedules in respect of both payment claims – Where the second identical claim was referred to an adjudicator - Where the applicant challenged the validity of the payment claim – Where the adjudicator held the payment claim was valid – Whether the second identical payment claim was valid for the purposes of the Building and Construction Industry Payments Act 2004 (Qld) — Authorities and principles discussed – Whether the adjudicator erred in interpreting cases – Whether adjudicator had jurisdiction to determine dispute.

Building and Construction Industry Payments Act 2004

Brodyn Pty Ltd t/as Time Cost and Quality v Davenport(2004) 61 NSWLR 421
Brookhollow Pty Ltd v R & R Consultants Pty Ltd [2006] NSWSC 1
Doolan v Rubikcon (Qld) Pty Ltd [2008] 2 Qd R 117
Impulse Electrical (Aust) Pty Ltd v Mother Natures Chermside Pty Ltd [2007] QDC 23

COUNSEL:

R A Holt SC and E Longbottom for the applicant
M P Van der Walt for the first respondent

SOLICITORS:

McCullough Robertson Lawyers for the applicant
Haisam Farache Lawyers for the first respondent

The applicant (“Northside”) seeks a declaration that the adjudication decision (“the adjudication”) by the second respondent (“the adjudicator”) of 17 December 2008 in favour of the first respondent (“Trad”) is void.

Northside argues its application on the following basis:

(a) the adjudicator did not perform the task required by the Building and Construction Industry Payments Act 2004 (“BCIPA”) in that he did not make his determination having regard to the requirements and provisions of BCIPA as interpreted by the Supreme Court of Queensland; and

(b) there was no bona fide attempt by the adjudicator to exercise the relevant power relating to the subject matter of BCIPA and reasonably capable of reference to this power; and

(c) the payment claim served by Trad was not capable of founding the jurisdiction of the adjudicator.

Background

In July 2007 Northside and Trad entered into a contract (“the contract”) under which Trad was to provide building works in respect of a residential unit development at Cooee Bay.

Trad served a number of payment claims upon Northside. The first and second payment claims are not relevant to this application.

On 26 June 2008, Trad served a payment claim…

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 264
Decision Date: 4 September 2009

CaseChat Overview and Summary

The matter in the Supreme Court of Queensland involved Northside Projects Pty Ltd as the applicant, and Michael Trad, the first respondent, along with Trad Constructions Pty Ltd, the second respondent. The dispute centred on the validity of a payment claim issued by the first respondent, which was identical to another claim with the same reference date. The applicant had issued payment schedules in response to both claims. The second identical claim was referred to an adjudicator who found it to be valid, a decision the applicant contested. The court was required to determine the validity of the second payment claim and whether the adjudicator had correctly interpreted relevant cases and possessed jurisdiction to adjudicate on the dispute.

The primary legal issue before the court was whether the second identical payment claim was valid under the Building and Construction Industry Payments Act 2004 (Qld). The court considered whether the adjudicator had erred in his interpretation of relevant cases and whether he had jurisdiction to make a decision on the validity of the claim. The applicant argued that the adjudicator lacked jurisdiction because the second payment claim was identical to the first, and the applicant had already issued payment schedules in response to both. The court needed to assess the adjudicator's jurisdictional authority and the correctness of his interpretation of the law.

The court found that the adjudicator had indeed erred in his interpretation of relevant cases and did not have jurisdiction to determine the dispute. The court held that the second identical payment claim was not valid because the applicant had already responded to it by issuing payment schedules. This response effectively meant that the second claim was no longer a live issue. The court concluded that the adjudicator's decision was void because it was based on an invalid claim. The court's decision was based on the principle that once a party has responded to a payment claim, it cannot be revisited by issuing an identical claim. The court's reasoning was that the adjudicator overstepped his jurisdiction by making a decision on an issue that had already been resolved.

The final order of the court declared that the adjudication decision issued by Andrew Wallace on 17 December 2008, in respect of adjudication application number 1057877_777 made by Michael Trad against Northside Projects Pty Ltd, was void. This decision affirmed that the second identical payment claim was invalid, and the adjudicator had no jurisdiction to rule on it.

Orders

Orders of the court

IT IS DECLARED THAT THE ADJUDICATION DECISION ISSUED BY ANDREW WALLACE DATED 17 DECEMBER 2008 IN RESPECT OF ADJUDICATION APPLICATION NUMBER 1057877_777 MADE BY MICHAEL TRAD AGAINST NORTHSIDE PROJECTS PTY LTD IS VOID.

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:	Northside Projects P/L v Trad & Anor [2009] QSC 264
PARTIES:	NORTHSIDE PROJECTS PTY LTD ACN 105 629 589 (applicant) v MICHAEL MOHAMMAD TRAD (first respondent) ANDREW BRUCE WALLACE (second respondent)
FILE NO/S:	1176 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	4 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	19 May 2009
JUDGE:	Martin J
ORDER:	IT IS DECLARED THAT THE ADJUDICATION DECISION ISSUED BY ANDREW WALLACE DATED 17 DECEMBER 2008 IN RESPECT OF ADJUDICATION APPLICATION NUMBER 1057877_777 MADE BY MICHAEL TRAD AGAINST NORTHSIDE PROJECTS PTY LTD IS VOID.
CATCHWORDS:	BUILDING AND ENGINEERING CONTRACTS – ADJUDICATION – Where the first respondent issued two identical payment claims with the same reference date – Where the applicant issued payment schedules in respect of both payment claims – Where the second identical claim was referred to an adjudicator - Where the applicant challenged the validity of the payment claim – Where the adjudicator held the payment claim was valid – Whether the second identical payment claim was valid for the purposes of the Building and Construction Industry Payments Act 2004 (Qld) — Authorities and principles discussed – Whether the adjudicator erred in interpreting cases – Whether adjudicator had jurisdiction to determine dispute. Building and Construction Industry Payments Act 2004 Brodyn Pty Ltd t/as Time Cost and Quality v Davenport(2004) 61 NSWLR 421 Brookhollow Pty Ltd v R & R Consultants Pty Ltd [2006] NSWSC 1 Doolan v Rubikcon (Qld) Pty Ltd [2008] 2 Qd R 117 Impulse Electrical (Aust) Pty Ltd v Mother Natures Chermside Pty Ltd [2007] QDC 23
COUNSEL:	R A Holt SC and E Longbottom for the applicant M P Van der Walt for the first respondent
SOLICITORS:	McCullough Robertson Lawyers for the applicant Haisam Farache Lawyers for the first respondent