Phoenix International Group Pty Ltd v Resources Combined No 2 Pty Ltd

Phoenix International Group Pty Ltd initiated proceedings against Resources Combined No 2 Pty Ltd in the County Court of Victoria, seeking to recover an amount determined by an adjudicator under the Building and Construction Industry Security of Payment Act 2002 (Vic.). The dispute involved a payment claim made in the construction industry, with Phoenix seeking to enforce an adjudicator's decision against Resources. The court was tasked with determining the appropriate form of proceeding to enter judgment for the adjudicated amount, considering changes to the Act by the Building and Construction Industry Security of Payment Amendment Act 2006 (Vic.).

The key legal issue was whether the form of proceeding to enter judgment for an adjudicated amount should be an originating motion in Form 5C, as required under section 27 of the Act as it stood prior to the 2006 amendment, or an originating motion in Form 5D, as required under section 28R of the Act following the amendment. The court had to interpret the relevant sections of the Act to ascertain the appropriate procedure to be followed in the current context, given the timing of the adjudicator's determination and the subsequent legislative change.

The County Court held that the appropriate form of proceeding to enter judgment for the adjudicated amount depended on the date of the adjudicator's determination relative to the commencement of the amending Act. If the adjudicator's determination was made before the amendment came into effect, an originating motion in Form 5C was suitable. However, if the determination was made after the amendment, the proper form of proceeding was an originating motion in Form 5D. The court found that the amending Act could provide insight into the intention of the earlier enactment, facilitating a coherent interpretation of the statutory framework.

The court ordered that if the adjudicator's determination was made before the amendment, an originating motion in Form 5C on notice to the respondent was appropriate, and the order for entry of judgment should be made by an Associate Judge. Conversely, if the determination was made after the amendment, an originating motion in Form 5D was suitable, and the order for entry of judgment should be made by an Associate Judge ex parte. The court's decision ensured compliance with the statutory requirements for entering judgment in security of payment disputes under the amended Act.