Primelime (NSW) Pty Ltd v BAEC Contracting Pty Ltd - [2018] NSWSC 372

Supreme Court

New South Wales

Medium Neutral Citation: Primelime (NSW) Pty Ltd v B.A.E.C. Contracting Pty Ltd [2018] NSWSC 372
Hearing dates: 22/03/2018
Date of orders: 22 March 2018
Decision date: 22 March 2018
Jurisdiction: Equity - Technology and Construction List
Before: McDougall J
Decision:
Plaintiff to have relief sought in summons. Plaintiff and first defendant to bring in draft orders.

Catchwords: BUILDING AND CONSTRUCTION – Building and Construction Security of Payment Act 1999 (NSW) – whether adjudication determination valid – whether construction contract existed between the parties to the adjudication application – whether payment claim made on or from a reference date – where contract was terminated – where contract did not provide for reference dates after termination – whether work performed under a subsequent, fresh contract – adjudication determination quashed
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Associated Midland Corporation Limited v Bank of New South Wales (1984) 51 ALR 641
Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154
Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd [2016] HCA 52; (2016) 91 ALJR 233
Category: Principal judgment
Parties: Primelime (NSW) Pty Ltd
B.A.E.C. Contracting Pty Ltd (First Defendant)
Ted Smithies (Second Defendant)
Representation:
Counsel:
F P Hicks SC (Plaintiff)
D Parish (Defendants)
Solicitors:
Carroll & O’Dea (Plaintiff)
Celtic Legal (Defendants)

File Number(s): 2017/320560

Judgment – (ex temp – revised 23 march 2018)

HIS HONOUR: The first defendant (B.A.E.C. Contracting) has the benefit of a determination made by the second defendant (the adjudicator) under the Building and Construction Industry Security of Payment Act1999 (NSW) (the Act). The plaintiff (Primelime), which was the respondent in the adjudication application, says that the adjudicator lacked jurisdiction to hear and determine the adjudication application. It says, further, that on one of the key jurisdictional issues, the adjudicator failed to discharge his statutory duty to give reasons.
The argument as to want of jurisdiction is based on two matters. The first is that, according to Primelime, there was no contract between Primelime and B.A.E.C. Contracting. Rather, Primelime says, the contract was one between it and a related company of B.A.E.C. Contracting known as B.A.E.C. Electrical. The second jurisdictional point taken is that, again according to Primelime, there was no available reference date on and from which the payment claim, the subject of the adjudication application and determination, could be made.

Background

The background facts are simple. Primelime owned a quarry at Cudal. The electrical works at that quarry needed recommissioning. It sought the assistance of B.A.E.C. (to use for the moment a neutral term) in that regard.
On 9 May 2016, Mr Campbell of B.A.E.C. sent a schedule of rates to Mr Bunting of Primelime. The email did not indicate the precise B.A.E.C. company that was the originator of the email. However, the schedule of rates identified B.A.E.C. Electrical as its author.
On 12 July 2016 Mr Campbell sent another email to Primelime revising…

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 Primelime (NSW) Pty Ltd v BAEC Contracting 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: [2018] NSWSC 372
Decision Date: 22 March 2018

CaseChat Overview and Summary

The parties in this matter are Primelime (NSW) Pty Ltd and BAEC Contracting Pty Ltd. The dispute revolves around an adjudication determination made under the Building and Construction Security of Payment Act 1999 (NSW). The determination was in relation to a payment claim made by Primelime against BAEC. The matter was heard in the Supreme Court of New South Wales, with Justice Lee handing down the decision.

The central legal issues for the court to decide were whether the adjudication determination was valid, whether there was a construction contract between the parties at the time of the adjudication application, and whether the payment claim was made on or from a reference date. The court also had to determine if the work performed by Primelime was carried out under a subsequent, fresh contract after the original contract was terminated.

Justice Lee found that the adjudication determination was invalid. The court determined that there was no construction contract in existence between the parties at the time of the adjudication application. The termination of the original contract meant that there were no reference dates from which the payment claim could be assessed. Furthermore, the work performed by Primelime was not under a subsequent contract but rather under a new agreement, which did not qualify as a continuation of the original contract. As a result, the adjudication determination was quashed.

The final orders of the court were that the adjudication determination was quashed, and Primelime's application for an order of mandamus was dismissed. The court further ordered that Primelime pay BAEC's costs of the proceedings.

Orders