SUPREME COURT OF QUEENSLAND
CITATION:
Prime Constructions (Qld) Pty Ltd v HPS (Qld) Pty Ltd & Ors [2019] QSC 301
PARTIES:
PRIME CONSTRUCTIONS (QLD) PTY LTD
(ABN 11 128 215 903)(applicant)
v
HPS (QLD) PTY LTD (ABN 34 131 447 517)(first respondent)
and
JOHN TUHTAN (REGISTERED ADJUDICATOR NUMBER J1190798)
(second respondent)
and
THE ADJUDICATION REGISTRAR, QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(third respondent)FILE NO/S:
No BS 10745/19
DIVISION:
Trial
PROCEEDING:
Originating application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
13 December 2019
DELIVERED AT:
Brisbane
HEARING DATE:
18 October 2019; further written submissions received on 23 and 28 October 2019
JUDGE:
Flanagan J
ORDERS:
1. The originating application is dismissed.
2. The sum of $1,072,568.28 paid into Court by the applicant pursuant to the order of Ryan J made 4 October 2019 be paid out to the solicitors for the first respondent.
3. The applicant pay the first, second and third respondents’ costs of the proceedings.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where a subcontractor and head contractor entered into a construction contract for the installation of windows & glazing for a residential project – where there was a severe storm – where there were multiple sources of water ingress – where the head contractor relied on an indemnity clause to deduct from the subcontractor’s payment claim the costs of rectifying water damage – where the adjudicator deducted a smaller amount than scheduled by the head contractor – where the head contractor asserted that the adjudicator committed jurisdictional error – whether the adjudicator failed to consider material that he was required to consider, give adequate reasons, or observe natural justice
Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 88, s 89
Annie Street JV Pty Ltd v MCC Pty Ltd & Ors [2016] QSC 268, cited
Avopiling (NSW) Pty Ltd v Mernard Bachy Pty Ltd [2012] NSWSC 1466, applied
Caltex Refineries (Qld) Pty Ltd v Allstate Access Australia Pty Ltd [2014] QSC 223, applied
Craig v South Australia (1995) 184 CLR 163, cited
Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd [2012] 1 Qd R 525, citedCOUNSEL:
M D Ambrose QC for the applicant
B D O’Donnell QC, with J R Green, for the first respondent
No appearance for the second respondent
No appearance for the third respondentSOLICITORS:
Holding Redlich for the applicant
Corrs Chambers Westgarth for the first respondent
No appearance for the second respondent
No appearance for the third respondent
The applicant, Prime Constructions (Qld) Pty Ltd, seeks a declaration that the decision of the second respondent (adjudicator) dated 27 September 2019 under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act) is void for want of jurisdiction. Prime also seeks consequential injunctive relief.
The declaration is sought on the basis that the adjudicator committed five jurisdictional…
Keep reading for free
Create a free CaseChat account to read Prime Constructions (Qld) Pty Ltd v HPS (Qld) 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2019] QSC 301
- Decision Date
CaseChat Overview and Summary
The primary legal issues revolved around whether the adjudicator failed to consider material that he was required to consider, gave inadequate reasons, or did not observe natural justice. Prime argued that the adjudicator's decision was flawed because it did not sufficiently address the evidence regarding the water damage and its causes, and thus it failed to properly apply the indemnity clause in the contract. The court had to determine if the adjudicator's decision was legally sound and whether it adhered to the statutory requirements for adjudication under the BIF Act.
The court concluded that Prime had not established that the adjudicator committed any of the alleged jurisdictional errors. The adjudicator's 52-page decision demonstrated a thorough review of the relevant statutory provisions, the construction contract, the payment claim, and the payment schedule. Additionally, the adjudicator had noted the severe storm event and the multiple sources of water ingress, and had considered the competing assertions of both parties regarding the water damage. The court found that the adjudicator had exercised his discretion appropriately and had provided sufficient reasons for his decision, thus adhering to the principles of natural justice. The court dismissed Prime's application, ordering the funds paid into court to be released to HPS and directing Prime to pay the costs of the proceedings.
Orders
Orders of the court
1. The originating application is dismissed.
2. The sum of $1,072,568.28 paid into Court by the applicant pursuant to the order of Ryan J made 4 October 2019 be paid out to the solicitors for the first respondent.
3. The applicant pay the first, second and third respondents’ costs of the proceedings.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.