NRW Pty Ltd v Samsung C&T Corporation
[2015] WASC 372
•8 OCTOBER 2015
NRW PTY LTD -v- SAMSUNG C&T CORPORATION [2015] WASC 372
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 372 | |
| Case No: | CIV:2253/2015 | 29 SEPTEMBER 2015 | |
| Coram: | MASTER SANDERSON | 8/10/15 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Judgment registered Plaintiff given leave to enforce judgment | ||
| B | |||
| PDF Version |
| Parties: | NRW PTY LTD as Trustee for NRW UNIT TRUST SAMSUNG C&T CORPORATION |
Catchwords: | Construction Contracts Act 2004 (WA) Application by plaintiff to register judgment Claim by defendant of setoff Turns on own facts |
Legislation: | Construction Contracts Act 2004 (WA) |
Case References: | Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304 Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237 O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2008] WASC 58; (2008) 36 WAR 479 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SAMSUNG C&T CORPORATION
Defendant
Catchwords:
Construction Contracts Act 2004 (WA) - Application by plaintiff to register judgment - Claim by defendant of setoff - Turns on own facts
Legislation:
Construction Contracts Act 2004 (WA)
Result:
Judgment registered
Plaintiff given leave to enforce judgment
Category: B
Representation:
Counsel:
Plaintiff : Mr D J Marsh
Defendant : Mr R F F Edwards
Solicitors:
Plaintiff : Solomon Brothers
Defendant : DLA Piper
Case(s) referred to in judgment(s):
Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304
Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237
O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2008] WASC 58; (2008) 36 WAR 479
1 MASTER SANDERSON: This is the plaintiff's originating summons seeking leave to enforce an adjudication made under the Construction Contracts Act 2004 (WA). The plaintiff seeks to have judgment entered in an amount of $8,478,608.57 being the amount of the determination made by the adjudicator, Mark Taylor, on 3 August 2015.
2 For the purposes of this application it is appropriate to state again the scheme of the Act. It is designed to 'keep the money flowing'. It allows for appointment of an adjudicator, for the parties to make submissions to the adjudicator, and for the adjudicator to make a decision. Once the adjudication is made it is for the party who was found to be indebted to make payment based on the adjudication. That is the effect of s 39(1) of the Act.
3 It must be acknowledged the Act radically alters the relationship between principal and subcontractor. Prior to the introduction of the Act a subcontractor could submit a claim or progress claim to a principal and the principal could, if it believed there were grounds for doing so, refuse to make payment. The matter then had to go to arbitration or was the subject of proceedings in this court. That could take years. The aim of the Act was to give a subcontractor a right to promptly obtain a determination and consequently a payment. A party retained the right to take the matter to court if it was not satisfied with the determination. But the mere fact it was dissatisfied with the determination was not grounds for a refusal to pay.
4 If a party did not make payment pursuant to a determination then the determination can be registered as a judgment. That is the effect of s 43 of the Act. It is in the following terms:
43. Determinations may be enforced as judgments
(1) In this section -
court of competent jurisdiction, in relation to a determination, means a court with jurisdiction to deal with a claim for the recovery of a debt of the same amount as the amount that is payable under the determination.
(2) A determination may, with the leave of a court of competent jurisdiction, be enforced in the same manner as a judgment or order of the court to the same effect, and if such leave is given, judgment may be entered in terms of the determination.
(3) For the purposes of subsection (2), a determination signed by an adjudicator and certified by the Building Commissioner as having been made by a registered adjudicator under this Part is to be taken as having been made under this Part.
5 Although s 43(2) is couched in permissive terms it is difficult to see in what circumstances registration of a judgment could be refused. Perhaps in circumstances where a judicial review has been undertaken or where a party has exercised its limited rights of appeal under s 46. But otherwise there seems little basis for refusing registration of a determination and thereby undermining the intent of the Act.
6 Here the defendant says that it has a substantial set-off against the determination in favour of the plaintiff and that is grounds for refusal to register the judgment and giving leave to enforce it. There is some support for that submission in the decided cases. In Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237, Mitchell J put the position as follows:
The fact that a debtor alleges the existence of claims against the other party which could be set off against the determination will not ordinarily justify the refusal of leave. Nor is an application for leave to enforce a determination ordinarily the occasion for challenging the correctness of the determination or, in the absence of a pending application for judicial review, its validity. There are no closed categories of circumstances that may be relevant to the question of whether leave should be granted [259]. (footnotes omitted)
7 Similar statements of principle to be found in the decision of Pritchard J in Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304 and in a decision of Beech J in O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2008] WASC 58; (2008) 36 WAR 479. For my part I have difficulty seeing circumstances other than the two instances I have referred to above where registration of a judgment might be refused. But whether or not the categories are closed and there may be instances where the circumstances are such registration is refused the mere existence of a set-off is not in my view one of them. In this case the defendant went to considerable lengths to put before the court evidence that a set-off exists. I do not propose to undertake an examination of that evidence. Even if the defendant had made out that proposition I am not satisfied it provides grounds for refusing to register the judgment.
8 Accordingly there is in my view no basis for refusing the plaintiff's application and there will be orders in terms of the originating summons.
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