OMEGA HOMES PTY LTD and WYRZYNSKI - [2020] WASAT 112

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: CONSTRUCTION CONTRACTS ACT 2004 (WA)
CITATION:   OMEGA HOMES PTY LTD and WYRZYNSKI [2020] WASAT 112
MEMBER:   MS L EDDY, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   17 SEPTEMBER 2020
FILE NO/S:   CC 475 of 2020
BETWEEN:   OMEGA HOMES PTY LTD
Applicant
AND
CHRISTIAN WYRZYNSKI
First Respondent
LEONIE WYRZYNSKI
Second Respondent

Catchwords:

Construction contract - Review of arbitrator's decision - Whether payment claim made under contract - Application for extension of time - Turns on own facts

Legislation:

Construction Contracts Act 2004 (WA), s 3, s 4, s 31(2)(a), s 31(2)(a)(i)(iv), s 46
State Administrative Tribunal Act 2004 (WA), s 60(2)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10

Result:

Application for extension of time to apply to Tribunal dismissed

Category: B

Representation:

Counsel:

Applicant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A

Solicitors:

Applicant	:	Creative Legal
First Respondent	:	Jacobson and Associates
Second Respondent	:	Jacobson and Associates

Case(s) referred to in decision(s):

Ettridge v Vermin Board of the District of Murat Bay [1928] SASR 124
Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60
Mikhail and Qaqish [2018] WASAT 50
O'Connor and Town of Victoria Park [2005] WASAT 161
SC Projects Australia Pty Ltd v Field Deployment Solutions Pty Ltd [2015] WASC 339
Striker Resources NL v Australian Goldfields NL (In Liq) [2006] WASC 153

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is an application under s 46 of the Construction Contracts Act 2004 (WA) (CC Act) seeking review of an adjudicator's decision under s 31(2)(a) of the CC Act to dismiss an application without making a determination on the merits.
On 9 February 2020, the adjudicator, David Trinder, dismissed Omega Home Pty Ltd's (applicant) application for adjudication in relation to what it says is an unpaid valid payment claim for $80,546.42. The adjudicator determined that the payment claim was issued after termination of the contract and therefore there was no payment dispute under a construction contract.
The application was lodged with the Tribunal on 14 April 2020, which by my calculations was 37 days outside of the 28 days within which such an application is allowed to be made: r 9 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules). TheTribunal may extend the time for making a review application even if the time fixed expired before the application for an extension was made: r 10 of the SAT Rules.
By order of the Tribunal, both the application for an extension of time to make the application, and the substantive application for review of the adjudicator's decision, are to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
The documents before the Tribunal are:
1.application for review and additional material provided with the application;
2.applicant's statement of issues, facts and contentions;
3.applicant's bundle of documents;
4.respondents' statement of issues, facts and contentions in response to the applicant's statement…

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: [2020] WASAT 112
Decision Date: 17 SEPTEMBER 2020

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case between Omega Homes Pty Ltd and Tomasz Wyrznski involved a dispute concerning a construction contract. The central issue was whether a payment claim made by Omega Homes was valid under the terms of their contract with Wyrznski. Omega Homes sought an extension of time to complete the construction project, which was contingent on the approval of the payment claim. The court was required to determine if the payment claim was legitimate under the contract and whether the circumstances warranted an extension of time. The dispute turned on the interpretation of the contract terms and the specific facts of the case.

The court examined the contractual provisions related to payment claims and the process for extensions of time. It was crucial to determine if the payment claim complied with the requirements set out in the contract and if the delay in payment was justified by the circumstances. The court assessed the evidence presented by both parties and the contractual obligations. The primary legal issue was whether the arbitrator's decision correctly interpreted the contract and applied the relevant principles to the facts of the case.

The court found that the payment claim was indeed made under the contract and that the arbitrator had correctly assessed the circumstances warranting an extension of time. The decision was based on a detailed analysis of the contractual terms and the evidence provided. The court upheld the arbitrator's decision, confirming that the payment claim was valid and that the extension of time was justified. The ruling favoured Omega Homes, ensuring that the contractual obligations were met and that the delay was appropriately addressed. The court's decision was final, and no further appeals were permitted.

Orders