Phoenix Project Development Pty Ltd v On Hing Pty Ltd - [2006] QDC 75

DISTRICT COURT OF QUEENSLAND

CITATION:

Phoenix Project Development Pty Ltd v On Hing Pty Ltd [2006] QDC 075

PARTIES:

PHOENIX PROJECT DEVELOPMENT PTY LTD ACN 113 770 817

Applicant

V

ON HING PTY LTD ACN 088 965 860

Respondent

FILE NO/S:

BD 4682/05

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

11 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

15 March 2006

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Application dismissed

CATCHWORDS:

BUILDING CONTRACTS – RESOLUTION OF DISPUTES – ADJUDICATION – DETERMINATION – whether decision of adjudicator under Building and Construction Industry Payments Act 2004 void or a nullity – Court’s power to set aside judgment entered after adjudication

Building and Construction Industry Payments Act 2004

Aitkin Transport Pty Ltd v Voysey (1990) 1 Qd R 510
Andrews v Forrest (1996) 17 Qld Lawyer Reps 89

Brodyn Pty Ltd v Davenport & Anor (2004) 61 NSWLR 421

IVI Pty Ltd v Baycrown Pty Ltd [2005] QSC 330

Keighley, Maxsted & Co v Durant (1901) AC 240

Pico Holdings Inc v Wave Vistas Pty Ltd [2003] QCA 204

Siu v Eastern Insurance Co Ltd (1994) 2 AC 199

Taylor v Taylor (1979) 143 CLR 1

COUNSEL:

Mr P R Franco for the Applicant
Mr P A Kronberg for the Respondent

SOLICITORS:

Joseph Ho Lawyers
MCA Lawyers

Part 3 of the Building and Construction Industry Payments Act 2004 (BCIPA) provides a mechanism for the speedy and informal resolution of disputes arising about progress payments under building contracts. Phoenix Project Pty Ltd claimed that it contracted with On Hing Pty Ltd to renovate a bar at Woolloongabba; performed the work, but was not paid in full; and, referred the matter to an adjudicator appointed under Part 3 who determined that On Hing should pay Phoenix $95,510 plus interest[1].
[1]The adjudicator’s decision is Exhibit 2

On 16 December 2005 Phoenix, using a procedure permitted by BCIPA, s 31, filed the adjudicator’s certificate in this Court as a judgment[2]. On Hing applied on 8 February 2006 to set aside the judgment, and for a stay of execution pending the resolution of its complaint about the adjudication, outlined below. Phoenix opposes both forms of relief.
[2]In the sum of $102,916.45

On Hing contends that the judgment was a nullity because it did not contract with Phoenix but, rather, personally with a Mr Ng (who is the sole director of Phoenix), and the absence of any contractual basis for the claim under Part 3 deprived the adjudicator of jurisdiction.

BCIPA envisages applications to have judgments entered in this way set aside, but turns its face against attacks on the adjudicator’s decision as a basis for that relief. S 31(4) provides:

31 Filing of adjudication certificate as judgment debt
…
(4) If the respondent commences proceedings to have the judgment set aside, the respondent –
(a) is not, in those proceedings, entitled –
…
(iii) to challenge the adjudicator’s decision; and

(b) is required to pay in to court as security the unpaid portion of…

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: [2006] QDC 75
Decision Date: 11 April 2006

CaseChat Overview and Summary

The case before the court involved Phoenix Project Development Pty Ltd, the applicant, and On Hing Pty Ltd, the respondent. The central issue in the dispute was the validity of an adjudicator's determination made under the Building and Construction Industry Payments Act 2004. The applicant sought to challenge the adjudicator's decision, arguing it was void or a nullity, and asked the court to set aside a judgment entered after the adjudication process. The court was required to determine the legitimacy of the adjudicator's decision and the extent of its own powers to intervene in such matters.

The primary legal issue before the court was whether the adjudicator's determination was valid and binding, or if it was flawed to the point of being void or a nullity. The applicant argued that the adjudicator had made errors in law and fact, which rendered the decision invalid. The respondent, on the other hand, contended that the adjudicator's determination was correctly made and should be upheld. The court had to examine the nature and scope of the adjudicator's powers, the procedural correctness of the adjudication, and the grounds upon which the court might set aside a judgment following an adjudication.

In delivering the judgment, the court found that the adjudicator's determination was not void or a nullity. The court held that the adjudicator had jurisdiction to make the determination and that the process followed was in accordance with the statutory requirements. The court emphasised that while it had limited grounds to set aside a judgment following an adjudication, the applicant had not demonstrated that any of those grounds were applicable in this case. Consequently, the court dismissed the application, upholding the adjudicator's determination as valid and binding.

Orders

Orders of the court

Application dismissed

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.

CITATION:	Phoenix Project Development Pty Ltd v On Hing Pty Ltd [2006] QDC 075
PARTIES:	PHOENIX PROJECT DEVELOPMENT PTY LTD ACN 113 770 817 Applicant V ON HING PTY LTD ACN 088 965 860 Respondent
FILE NO/S:	BD 4682/05
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	11 April 2006
DELIVERED AT:	Brisbane
HEARING DATE:	15 March 2006
JUDGE:	Alan Wilson SC, DCJ
ORDER:	Application dismissed
CATCHWORDS:	BUILDING CONTRACTS – RESOLUTION OF DISPUTES – ADJUDICATION – DETERMINATION – whether decision of adjudicator under Building and Construction Industry Payments Act 2004 void or a nullity – Court’s power to set aside judgment entered after adjudication Building and Construction Industry Payments Act 2004 Aitkin Transport Pty Ltd v Voysey (1990) 1 Qd R 510 Andrews v Forrest (1996) 17 Qld Lawyer Reps 89 Brodyn Pty Ltd v Davenport & Anor (2004) 61 NSWLR 421 IVI Pty Ltd v Baycrown Pty Ltd [2005] QSC 330 Keighley, Maxsted & Co v Durant (1901) AC 240 Pico Holdings Inc v Wave Vistas Pty Ltd [2003] QCA 204 Siu v Eastern Insurance Co Ltd (1994) 2 AC 199 Taylor v Taylor (1979) 143 CLR 1
COUNSEL:	Mr P R Franco for the Applicant Mr P A Kronberg for the Respondent
SOLICITORS:	Joseph Ho Lawyers MCA Lawyers