Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd - [2020] NSWCA 172

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWCA 172
Hearing dates: 6 August 2020
Date of orders: 6 August 2020
Decision date: 11 August 2020
Before: Meagher JA; Leeming JA; Payne JA.
Decision:
1. Appeal dismissed.
2. Appellant to pay the first respondent’s costs.

Catchwords:
BUILDING AND CONSTRUCTION — progress payments — whether right to a progress payment arose before suspension — whether adjudicator determined amount of progress payment — whether adjudicator committed jurisdictional error — whether contractor entitled to withdraw adjudication application under s 26 and file new adjudication application — whether necessary first to obtain declaratory relief –Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 9, 13, 22, 26.

Legislation Cited:
Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 9, 13, 17, 19, 20, 21, 22, 24, 25, 26, 34
Civil Procedure Act 2005 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Cardinal Project Services Pty Ltd v Hanave Pty Ltd (2011) 81 NSWLR 716; [2011] NSWCA 399
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Iskra v MMIR Pty Ltd [2019] NSWCA 126
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWSC 208
PPK Willoughby v Eighty Eight Construction [2014] NSWSC 760
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4
Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) (2019) 99 NSWLR 317; [2019] NSWCA 11
Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52
Westbourne Grammar School v Gemcan Constructions Pty Ltd [2017] VSC 645

Category: Principal judgment
Parties: Parrwood Pty Ltd (Appellant)
Trinity Constructions (Aust) Pty Ltd (First respondent)
Helen Durham (Second respondent)
AAE Nominations Pty Ltd (Third respondent)
John O’Brien (Fourth respondent)
Adjudicate Today Pty Ltd (Fifth respondent)
Representation:
Counsel:
I Roberts SC, D Byrne (Appellant)
M Pesman SC (First respondent)
Solicitors:
Addisons Lawyers (Appellant)
Colin Biggers & Paisley Lawyers (First respondent)

File Number(s): 2020/104475
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division, Technology and Construction List

Citation:

[2020] NSWSC 208

Date of Decision:

11 March 2020

Before:

Ball J

File Number(s):

2020/30257

Judgment

THE COURT: These are reasons for ordering, following the conclusion of oral submissions, that the appeal from the decision of the primary judge (Ball J) be dismissed with costs.

Background

The active parties to the appeal are Parrwood and Trinity. They entered into a design and construct contract for a residential development. Parrwood was the Principal; Trinity the Contractor. The contract was based upon AS4902-2000 and contained familiar provisions including, in cl 37.1, an entitlement upon Trinity…

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.

Keep reading for free

Create a free CaseChat account to read Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWCA 172
Decision Date: 11 August 2020

CaseChat Overview and Summary

Parrwood Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning a dispute arising under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The dispute involved Trinity Constructions (Aust) Pty Ltd's entitlement to a progress payment and the validity of an adjudication determination.

The central legal issues before the Court of Appeal were whether the right to a progress payment arose before the contractor suspended work, whether the adjudicator had determined the amount of the progress payment, and whether the adjudicator had committed jurisdictional error. Further, the court considered whether the contractor was entitled to withdraw its adjudication application under section 26 of the Act and file a new one, and whether it was necessary to obtain declaratory relief before doing so.

The Court of Appeal affirmed the primary judge's findings. It held that the right to a progress payment had arisen before the contractor suspended work, and that the adjudicator had indeed determined the amount of the progress payment. The court found no jurisdictional error on the part of the adjudicator. Crucially, the Court of Appeal determined that section 26 of the Act did not permit the withdrawal of an adjudication application in the circumstances presented, nor was it necessary to obtain declaratory relief to prevent the filing of a subsequent application.

The appeal was dismissed, and Parrwood Pty Ltd was ordered to pay the first respondent's costs.

Orders

Orders of the court

1. Appeal dismissed.

2. Appellant to pay the first respondent’s costs.

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.

Medium Neutral Citation:	Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWCA 172
Hearing dates:	6 August 2020
Date of orders:	6 August 2020
Decision date:	11 August 2020
Before:	Meagher JA; Leeming JA; Payne JA.
Decision:	1. Appeal dismissed. 2. Appellant to pay the first respondent’s costs.
Catchwords:	BUILDING AND CONSTRUCTION — progress payments — whether right to a progress payment arose before suspension — whether adjudicator determined amount of progress payment — whether adjudicator committed jurisdictional error — whether contractor entitled to withdraw adjudication application under s 26 and file new adjudication application — whether necessary first to obtain declaratory relief –Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 9, 13, 22, 26.
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 9, 13, 17, 19, 20, 21, 22, 24, 25, 26, 34 Civil Procedure Act 2005 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	Cardinal Project Services Pty Ltd v Hanave Pty Ltd (2011) 81 NSWLR 716; [2011] NSWCA 399 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Iskra v MMIR Pty Ltd [2019] NSWCA 126 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWSC 208 PPK Willoughby v Eighty Eight Construction [2014] NSWSC 760 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) (2019) 99 NSWLR 317; [2019] NSWCA 11 Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52 Westbourne Grammar School v Gemcan Constructions Pty Ltd [2017] VSC 645
Category:	Principal judgment
Parties:	Parrwood Pty Ltd (Appellant) Trinity Constructions (Aust) Pty Ltd (First respondent) Helen Durham (Second respondent) AAE Nominations Pty Ltd (Third respondent) John O’Brien (Fourth respondent) Adjudicate Today Pty Ltd (Fifth respondent)
Representation:	Counsel: I Roberts SC, D Byrne (Appellant) M Pesman SC (First respondent) Solicitors: Addisons Lawyers (Appellant) Colin Biggers & Paisley Lawyers (First respondent)
File Number(s):	2020/104475
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division, Technology and Construction List Citation: [2020] NSWSC 208 Date of Decision: 11 March 2020 Before: Ball J File Number(s): 2020/30257