Parkview Constructions Pty Ltd v Total Lifestyle Windows Pty Ltd - [2017] NSWSC 194

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Parkview Constructions Pty Limited v Total Lifestyle Windows Pty Ltd t/a Total Concept Group [2017] NSWSC 194
Hearing dates: 22 February 2017
Decision date: 07 March 2017
Jurisdiction: Equity - Technology and Construction List
Before: Hammerschlag J
Decision:
Adjudication determination to be quashed. Injunctions to be made restraining relying on it.

Catchwords: BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) – ss 17(3), 17(5) and 19 – Interpretation Act 1987 (NSW) ss21(1) – where an adjudication application made by the claimant differs from that referred by the authorised nominating authority to the adjudicator – where an adjudication application served on the respondent is not a copy of that referred to the adjudicator – where a claimant delivers a Universal Serial Bus (USB stick) containing an adjudication application – HELD: the adjudicator did not have jurisdiction to determine the adjudication application referred to him – HELD: delivery of USB stick is not service of a copy in writing until it is opened by the recipient – HELD: adjudication determination to be quashed.
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Interpretation Act 1987 (NSW)
Cases Cited: Agricultural and Rural Finance v Gardiner (2008) 238 CLR 570
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
Capper v Thorpe (1998) 194 CLR 342
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393
Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2015] 1Qd R 265
Shorten v David Hurst Constructions Pty. Ltd. [2008] NSWSC 546
Timwin Constructions Pty Ltd v Façade Innovations Pty Ltd [2005] NSWSC 548
Category: Principal judgment
Parties: Parkview Constructions Pty Limited - Plaintiff
Total Lifestyle Windows Pty Ltd t/a total Concept Group - First Defendant
Kenneth Spain - Second Defendant
Representation:
Counsel:
M. Christie SC with A.R.R. Vincent - Plaintiff
D.A. Savage QC with M.R. Bland - First Defendant
Submitting appearance - Second Defendant
Solicitors:
Salim Rutherford Lawyers - Plaintiff
QBM Lawyers - First Defendant

File Number(s): 2016/374624

Judgment

HIS HONOUR: These proceedings are to quash or to declare void an adjudication determination purportedly made under the provisions of the Building and Construction Industry Security of Payment Act1999 (NSW) (the Act) on the grounds that it is infected by either jurisdictional error or a denial of procedural fairness, or both.
References below to sections are, unless the context otherwise indicates, references to the Act.
The Plaintiff (Parkview) complains that:

the adjudication application made by the Defendant, the respondent under the Act (Total), differed from that referred by the authorised nominating authority to the adjudicator;

the adjudication application served on it, the respondent under the Act, was not a copy of that which was referred to the adjudicator;

its adjudication response was wrongly disregarded by the adjudicator; and

the adjudicator took into account material that was not properly part of the…

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: [2017] NSWSC 194
Decision Date: 07 March 2017

CaseChat Overview and Summary

In the matter of Parkview Constructions Pty Ltd versus Total Lifestyle Windows Pty Ltd, the dispute centred on the validity of an adjudication application under the Building and Construction Industry Security of Payment Act 1999 (NSW). The case was heard by the Supreme Court of New South Wales. Parkview Constructions, the claimant, sought to enforce a payment claim adjudicated in its favour, while Total Lifestyle Windows, the respondent, challenged the adjudication on the basis that the application submitted to the adjudicator was not the same as the one referred to him by the authorised nominating authority and that the service of the application was not in compliance with the Act.

The central legal issues for the court to decide were whether the adjudicator had jurisdiction to determine the adjudication application and whether the service of the adjudication application was valid. Specifically, the court needed to determine if the application served on the respondent was a true copy of the one referred to the adjudicator and whether the service of the application on the respondent was compliant with the statutory requirements.

The court found that the adjudicator did not have jurisdiction to determine the adjudication application referred to him. The court held that the application served on the respondent was not identical to the one referred to the adjudicator, thus failing to meet the requirements under the Act. Furthermore, the court ruled that the delivery of a USB stick containing the adjudication application did not constitute the service of a copy in writing until it was opened by the recipient. Consequently, the adjudication determination was quashed. The court ordered that the adjudication determination be set aside and that the costs of the proceeding be paid by the claimant.

Orders