Nuance Group v Shape Australia - [2018] VSC 362

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
COMMERCIAL COURT
TECHNOLOGY, ENGINEERING & CONSTRUCTION LIST

Not Restricted

S ECI 2018 0108

THE NUANCE GROUP (AUSTRALIA) PTY LIMITED (ACN 068 215 341)	First Plaintiff
- and -
SHAPE AUSTRALIA PTY LIMITED (ACN 003 861 765)	First Defendant
THOMAS JONES	Second Defendant
MAX TONKIN	Third Defendant
ADJUDICATE TODAY PTY LTD (ACN 109 605 021)	Fourth Defendant

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2018
DATE OF JUDGMENT:	29 June 2018
CASE MAY BE CITED AS:	Nuance Group v Shape Australia
MEDIUM NEUTRAL CITATION:	[2018] VSC 362

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BUILDING – Adjudication – Whether an Adjudicator has determined the adjudicated amount in accordance with the Building and Construction Industry Security of Payment Act 2002 (Vic), s 23 – Adequacy of the Adjudicator’s Reasons and the basis for the amount decided.

BUILDING - Review Adjudication – Effect of Review Adjudication - Building and Construction Industry Security of Payment Act 2002 (Vic), s 28B and 28I.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M G Roberts QC	Piper Alderman
For the First Defendant	Mr I G Roberts SC	Turtons Lawyers

HIS HONOUR:

Precis of the Matter

The plaintiff, The Nuance Group (Australia) Pty Ltd (also known as Dufry) (‘Nuance’), seeks to have the second defendant’s, Thomas Jones (‘the Adjudicator’), Adjudication Determination quashed on the basis that the Adjudicator has fundamentally failed to determine the amount of the first defendant’s, SHAPE Australia Pty Limited (‘Shape’), progress payment to be paid as required by s 23 of the Building and Construction Industry Security of Payment Act 2002 (Vic) (‘the SOP Act’).

The plaintiff also seeks to quash a subsequent Review Determination, which reviewed the Adjudication and determined that the Adjudicated Amount should be reduced by the deduction of certain excluded amounts.

The Review Determination is sought to be quashed because it cannot be validly based on an Adjudication Determination which is itself invalid.

Nuance’s Application

By Summons on Originating Motion dated 22 May 2018, Nuance seeks the following relief:

1.Until the final determination of this proceeding, or further order, the first defendant by itself, its servants or agents is restrained from relying on the terms of s 28O, 28P, 31-41 of the Building and Construction Industry Security of Payment Act 2002 (Vic) or otherwise to:
(a)request an Adjudication Certificate based upon the Adjudication Determination 2018ADJTVICA041 made by the second defendant on 13 April 2018 or the Review Determination 2018ADJTVICA041R made by the third defendant on 11 May 2018;
(b)seek judgment in the Adjudicated Amount referred to in the Adjudication Determination 2018ADJTVICA041 made by the second defendant on 13 April 2018 or the Adjudicated Amount referred to in the Review Determination 2018ADJTVICA041R made by the third defendant on 11 May 2018;
(c)enforce the Adjudication Determination 2018ADJTVICA041 made by the second defendant on 13 April 2018 or the Review Determination 2018ADJTVICA041R made by the third defendant on 11 May 2018;
(d)otherwise seek recovery of the Adjudicated Amount.

2.Until the final determination of this proceeding,…

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.

Continue reading Nuance Group v Shape Australia

Details

AGLC: Nuance Group v Shape Australia [2018] VSC 362
Case: [2018] VSC 362
Decision Date: 29 June 2018

CaseChat Overview and Summary

Nuance Group filed a claim against Shape Australia in relation to an unpaid amount for works completed under a contract for the construction of a building. The dispute was brought before the Supreme Court of Victoria, where the primary issue was whether the Adjudicator had determined the adjudicated amount in accordance with the Building and Construction Industry Security of Payment Act 2002 (Vic), section 23, and if the Adjudicator's reasons were adequate. A secondary issue was the effect of the Review Adjudication on the original adjudication, in light of sections 28B and 28I of the Act.

The court examined the Adjudicator's decision to determine if it adhered to the requirements of section 23 of the Act, which mandates that the Adjudicator must decide the amount that the respondent ought to pay to the applicant. The court also assessed the sufficiency of the reasons provided by the Adjudicator and the basis on which the adjudicated amount was decided. Furthermore, the court considered the implications of the Review Adjudication on the original adjudication, focusing on whether the review was conducted properly and if it altered the outcome of the initial adjudication.

The Supreme Court found that the Adjudicator had not determined the adjudicated amount in accordance with section 23 of the Act. The court held that the Adjudicator's reasons were insufficient and did not adequately explain the basis for the amount decided. Consequently, the Review Adjudication was effective in setting aside the original adjudication, and the matter was remitted back to the Adjudicator for a fresh determination. The court did not grant the orders sought by either party and remitted the dispute back to the Adjudicator for a new adjudication.

Orders