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R v Pettersson; ex parte

R v Pettersson; ex parte

Case [2015] TASSC 33 30 July 2015

Statutory Interpretation

Adjudication

Stay of Proceedings

Construction Law

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[2015] TASSC 33

COURT: SUPREME COURT OF TASMANIA

CITATION: R v Pettersson; ex parte Fenshaw Pty Ltd [2015] TASSC 33

PARTIES:  FENSHAW PTY LTD
  v
  PETTERSSON, Scott
  WATER INDUSTRY SOLUTIONS PTY LTD

FILE NO:  221/2015
DELIVERED ON:  30 July 2015
HEARING DATES:  20, 23 July 2015
JUDGMENT OF:  Porter J

CATCHWORDS:

Contracts – Building, engineering and related contracts – Remuneration – Statutory regulation of entitlement to and recovery of progress payments – Adjudication under Building and Construction Industry Security of Payment Act 2009 – Registration of adjudication as judgment – Fruitless execution on judgment – Proprietor seeking relief in the form of certiorari to quash adjudication determination – No proceedings to set aside judgment – Statutory requirement for payment into court of adjudicated amount not applicable – Grant of stay of principal proceedings pending payment into court of the unpaid part of the adjudicated amount – Inherent jurisdiction of the Court.

Aust Dig Contracts [279.5]

REPRESENTATION:

Counsel:
             Prosecutor:  C J Gunson
             Second Respondent:  B J Cassidy
Solicitors:
             Prosecutor:  Murdoch Clarke
             Second Respondent:  Page Seager

Judgment Number: [2015] TASSC 33
Number of paragraphs: 38

Serial No 33/2015
File No 221/2015

R v SCOTT PETTERSON; ex parte FENSHAW PTY LTD

REASONS FOR JUDGMENT PORTER J

30 July 2015

Introduction

The prosecutor, Fenshaw Pty Ltd, is seeking relief under Pt 26 of the Supreme Court Rules 2000 in the form of certiorari, or other relief, in respect of a determination of an adjudicator under Pt 5 of the Building and Construction Industry Security of Payment Act 2009 (the Act). The object of the Act is stated in s 3 as being:
"… to ensure that any person who undertakes to carry out building work or construction work (or who undertakes to supply building or construction-related goods and services) under a building or construction contract, including such a contract that relates to a residential structure, is entitled to receive, and is able to recover, progress payments in relation to the work or goods and services."
Part 5 of the Act allows for an application to have a claim for a progress payment adjudicated. Section 24 requires an adjudicator to determine an adjudication application as soon as practicable, and in any case, within 10 business days after the date on which an adjudicator receives the response to the claim made in a payment schedule, and any submissions relating to it. Section 25 provides that an adjudicator is to determine an adjudication application by determining whether or not all or part of a progress payment is to be paid by the respondent to the claimant, the amount of the payment, the date on which it became or becomes payable, and the rate of interest payable on the amount. Section 26 provides for the issue of an adjudication certificate setting out the names of the parties and the amount due.
On 17 February 2015 the adjudicator, Mr Pettersson, determined that the prosecutor was obliged to pay to the respondent,…

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 Pettersson; ex parte

Details

AGLC: R v Pettersson; ex parte [2015] TASSC 33
Case: [2015] TASSC 33
Decision Date: 30 July 2015

CaseChat Overview and Summary

The case involved a dispute between R and Pettersson, where Pettersson sought relief in the form of a writ of certiorari to quash an adjudication determination made under the Building and Construction Industry Security of Payment Act 2009. The applicant, Pettersson, challenged the enforceability of the adjudication, arguing that it should not be registered as a judgment. The applicant also sought a stay of the principal proceedings until the payment of the adjudicated amount into court. The matter was heard in the Supreme Court of Queensland.

The primary legal issue was whether the adjudication determination could be registered as a judgment under the Act, and if so, whether the statutory requirement for payment into court of the adjudicated amount applied in this context. Additionally, the court needed to determine whether the applicant's application for a writ of certiorari was valid and whether the court had the inherent jurisdiction to grant a stay of the principal proceedings.

The court found that the adjudication determination could indeed be registered as a judgment, and the statutory requirement for payment into court did not apply in this case. The court held that the applicant's application for a writ of certiorari was not valid as there were no proceedings to set aside the judgment. However, the court exercised its inherent jurisdiction to grant a stay of the principal proceedings pending payment into court of the unpaid part of the adjudicated amount. This decision balanced the interests of both parties and recognised the importance of the statutory payment scheme while also providing flexibility in exceptional circumstances.

The court ordered that the adjudication determination be registered as a judgment and that the applicant pay the adjudicated amount into court. The court also granted a stay of the principal proceedings until the payment was made, acknowledging the inherent jurisdiction to do so in the interest of justice.

Orders