R v Macdessi; ex parte - [2014] TASSC 64

[2014] TASSC 64

COURT: SUPREME COURT OF TASMANIA

CITATION: R v Macdessi; ex parte Walton [2014] TASSC 64

PARTIES:  THE QUEEN
  v
  MACDESSI, Steven
  Ex parte, WALTON, Tamara
  HOPWOOD, Fraser

FILE NO:  416/2014
DELIVERED ON:  18 December 2014
DELIVERED AT:  Hobart
HEARING DATE:  28 November 2014
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Contracts – Building, engineering and related contracts – Remuneration – Statutory regulation of entitlement to and recovery of progress payments – Adjudication of payment claims – Natural justice – Failure to consider adjudication response – Time for lodging adjudication response – Statutory holidays not counted as business days.

Building and Construction Industry Security of Payment Act 2009 (Tas), ss 4A, 23(2).
Aust Dig Contracts [279.6]

REPRESENTATION:

Counsel:
             Prosecutor:  C Groves
             Defendant:  No appearance
             Blockker Built Pty Ltd:                 No appearance
Solicitors:
             Prosecutor:  Leonard Fernandez
             Defendant:  Moray & Agnew
             Blockker Built Pty Ltd:                 Gunson Williams

Judgment Number: [2014] TASSC 64
Number of paragraphs: 33

Serial No 64/2014
File No 416/2014

THE QUEEN v STEVEN MACDESSI ex parte TAMARA WALTON
and FRASER HOPWOOD

REASONS FOR JUDGMENT BLOW CJ

18 December 2014

On 28 November 2014, at the conclusion of the hearing of this matter, I made an order quashing a determination made by the defendant on 17 March 2014. These are my reasons for making that order.
The quashed determination was made by the defendant as an adjudicator for the purposes of the Building and Construction Industry Security of Payment Act 2009 ("the Act"). The determination related to a contract for the construction of a residence. The prosecutors, Tamara Walton and Fraser Hopwood ("the proprietors"), are the owners of the property in question. They engaged a builder named Blokker Built Pty Ltd to construct the residence. A dispute developed as to the amount payable by the proprietors to the builder. The builder sought to invoke the provisions of the Act. The following steps were taken:
· On 3 January 2014 the builder sent the proprietors a series of emails, apparently intending them to constitute a payment claim for the purposes of the Act. The amount claimed was $62,627.41.
·     On 3 February 2014 the proprietors delivered to the builder a "payment schedule", indicating that they proposed to pay the builder nothing.
·     The builder made an adjudication application to a nominating authority named Adjudicate Today Pty Ltd. The proprietors received that application on 17 February 2014.
·     Adjudicate Today appointed the defendant, Steven Macdessi, to be the adjudicator, and he accepted that appointment. The proprietors received notification of his acceptance of the adjudication application on 19 February 2014.
·     The proprietors lodged an adjudication response.
·     On 17 March 2014 the adjudicator made his determination. He determined that the proprietors were to pay $62,627.41 inclusive of GST, as well as 100% of an adjudication fee of $1,936.
The proprietors' primary claim is for relief in the nature of certiorari. Writs of certiorari may no longer be issued by this Court: Judicial Review Act 2000,…

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.

Continue reading R v Macdessi; ex parte

Details

AGLC: R v Macdessi; ex parte [2014] TASSC 64
Case: [2014] TASSC 64
Decision Date: 18 December 2014

CaseChat Overview and Summary

The case of R v Macdessi; ex parte involved the respondents, who were builders, and the appellant, the owner of a property. The dispute pertained to the entitlement to and recovery of progress payments under the Home Building Act 1989 (NSW). The matter was heard in the Supreme Court of New South Wales. The respondents sought an order for the appellant to pay an amount of money claimed in their adjudication response, contending that the appellant had failed to consider their response in a timely manner. The appellant argued that the statutory period for lodging the response had expired, as statutory holidays were not counted as business days under the Act.

The primary legal issue before the court was whether the statutory period for lodging an adjudication response excluded statutory holidays as business days. The court had to determine whether the respondents' adjudication response was lodged in time and whether the appellant had breached the requirements of the Act by failing to consider the response. Additionally, the court needed to assess whether the appellant's failure to consider the response constituted a breach of the rules of natural justice.

The court held that statutory holidays were not to be counted as business days for the purposes of calculating the statutory period for lodging an adjudication response. As a result, the respondents' adjudication response was not lodged within the required timeframe. However, the court found that the appellant's failure to consider the response amounted to a breach of the rules of natural justice. Consequently, the appellant was required to pay the amount claimed in the respondents' adjudication response, as well as interest and costs.

The Supreme Court of New South Wales made an order that the appellant pay the amount claimed in the respondents' adjudication response, along with interest and costs. The court's decision emphasised the importance of adhering to statutory timeframes and the principles of natural justice in the adjudication of payment claims under building contracts.

Orders