Quasar Constructions v A J Stockman Pty Ltd - [2004] NSWSC 117

CITATION: Quasar Constructions v A J Stockman Pty Ltd [2004] NSWSC 117

HEARING DATE(S): 02/03/04

JUDGMENT DATE:
4 March 2004

JURISDICTION:
Equity Division
Technology and Construction List

JUDGMENT OF: Barrett J

DECISION: Application for judicial review dismissed

CATCHWORDS: ADMINISTRATIVE LAW - judicial review of determination of adjudicator under Building and Construction Industry Security of Payment Act - whether jurisdictional error of law - requirement that adjudicator have regard to contract price in assessing value of work - whether adjudicator exercised judgment

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999, ss.8, 9, 10, 22

CASES CITED: Abacus Funds Management Ltd v Davenport [2003] NSWSC 1027
Brodyn Pty Ltd v Davenport [2003] NSWSC 1019
Quasar Constructions NSW Pty Ltd v Demtech Pty Ltd [2004] NSWSC 116
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
Transgrid v Siemens Ltd [2004] NSWSC 87
Transgrid v Walter Construction Group Ltd [2004] NSWSC 21

PARTIES :
Quasar Constructions NSW Pty Ltd - Plaintiff
A J Stockman Pty Ltd - First Defendant
Tony Veghelyi - Second Defendant
The Australian Solutions Centre - Third Defendant

FILE NUMBER(S): SC 55012/04

COUNSEL: Mr D D Feller SC - Plaintiff
Mr K J Tapsell, Solicitor - First Defendant

SOLICITORS: James R Knowles Lawyers Pty Limited - Plaintiff
Watkins Tapsell - First Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND
CONSTRUCTION LIST

BARRETT J

THURSDAY, 4 MARCH 2004

55012/04 – QUASAR CONSTRUCTIONS NSW PTY LTD v A J STOCKMAN PTY LTD & 2 ORS

JUDGMENT

1 These proceedings were heard by me five days after I heard Quasar Constructions NSW Pty Ltd v Demtech Pty Ltd [2004] NSWSC 116, judgment in which has just been delivered. To the extent relevant, the observations in that judgment as to the meaning and operation of the provisions of the Building and Construction Industry Security of Payment Act 1999 and as to the jurisdiction under s.69(1) of the Supreme Court Act 1970 to make an order in the nature of certiorari quashing an adjudication determination under that Act apply here also.

2 As in Quasar v Demtech, the plaintiff seeks in these proceedings an order quashing such an adjudication determination on the basis that the adjudicator (who is the second defendant) fell into jurisdictional error of law. The claim for this and related relief is made in the plaintiff’s summons filed on 24 February 2004. It is common ground that, in the circumstances at hand, the adjudicator was required to proceed under ss.8(2)(b), 9(b) and 10(1)(b) of the Building and Construction Industry Security of Payment Act, there being, on his findings, no written contract in existence and no express contractual terms regarding progress payments. It is the plaintiff’s contention that the course of action the adjudicator took in making his determination was not the course laid down by those sections, with the result that the adjudicator determined a question other than the question raised by the relevant statutory provisions and did not…

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: [2004] NSWSC 117
Decision Date: 4 March 2004

CaseChat Overview and Summary

Quasar Constructions, the appellant, sought judicial review of a decision made by an adjudicator under the Building and Construction Industry Security of Payment Act, which was upheld by the lower court. The dispute involved the determination of payment for construction services rendered to A J Stockman Pty Ltd, the respondent. The central issue in the case was whether the adjudicator had made a jurisdictional error of law by not considering the contract price when assessing the value of the work completed.

The court was required to decide whether the adjudicator was mandated to take the contract price into account when evaluating the worth of the work performed. Additionally, the court needed to determine if the adjudicator had indeed exercised their judgment in assessing the value of the work, as opposed to merely applying a formulaic approach. The court also needed to examine whether the adjudicator's failure to consider the contract price constituted a jurisdictional error of law.

The court found that the adjudicator had not made a jurisdictional error of law by not considering the contract price when assessing the value of the work. The court held that the adjudicator had exercised their judgment in determining the value of the work, and that the adjudicator was not required to consider the contract price in making their assessment. The court also held that the adjudicator's failure to consider the contract price did not amount to a jurisdictional error of law. The court dismissed the appeal and affirmed the decision of the lower court. The lower court's decision was upheld, and Quasar Constructions' appeal was dismissed with costs.

Orders