Raw Build Pty Ltd v JBK Industries Pty Ltd - [2016] VSC 547

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST

S ECI 2015 000374

RAW BUILD PTY LTD (ACN 159 255 142)	Plaintiff
v
JBK INDUSTRIES PTY LTD (ACN 106 713 115)	Defendant
and
RICHARD HAPGOOD (IN HIS CAPACITY AS ADJUDICATOR UNDER THE BUILDING AND CONSTRUCTION INDUSTRY SECURITY OFPAYMENT ACT2002 BETWEEN JBK INDUSTRIES PTY LTD AND RAW BUILD PTY LTD)	Second Defendant

---

JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	IN CHAMBERS
DATE OF JUDGMENT:	9 SEPTEMBER 2016
CASE MAY BE CITED AS:	RAW BUILD PTY LTD v JBK INDUSTRIES PTY LTD
MEDIUM NEUTRAL CITATION:	[2016] VSC 547

---

BUILDING CONTRACTS – Construction dispute – Payment claim – Judicial review of adjudication determination – Whether s 28R of the Building and Construction Industry Security of Payment Act 2002 is engaged to require the plaintiff to make payment into Court – Whether the plaintiff is entitled to proceed with the judicial review of the adjudication determination in circumstances where it has not complied with order of the Court providing for payment of moneys into Court – Building and Construction Industry Security of Payment Act 2002 s 28R.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Kliger Partners
For the First Defendant	Macpherson Kelley Lawyers

HIS HONOUR:

This proceeding arises under the Building and Construction Industry Security of Payment Act 2002 (the ‘Act’).

By originating motion dated 25 October 2015 (the ‘Originating Motion’), the Plaintiff, Raw Build Pty Ltd (‘Raw Build’), formerly known as Kubic Constructions Pty Ltd, seeks, inter alia:

(a) An order by way of certiorari to quash the adjudication determination of the Second Defendant, the Adjudicator, dated 16 October 2015 (the ‘Second Adjudication Determination’);

(b) A declaration that the Adjudication Determination is unlawful and void;

(c) A declaration that the payment claim dated 25 July 2015 (the ‘Payment Claim’) is not a valid payment claim under the Act and the Adjudicator lacked jurisdiction; and

(d) A permanent injunction enjoining JBK Industries Pty Ltd (‘JBK’), the First Defendant, from relying upon the terms of ss 28O , 28R 29 and 31-41 of the Act.

Background facts

Raw Build is a commercial and residential construction contractor. It was engaged as head contractor in the construction of a multi-storey residential development located at 486 Victoria Street, Richmond, in the State of Victoria (the ‘Project’).

On or about 26 March 2014, Raw Build entered into a subcontract with JBK, pursuant to which JBK was to undertake the mechanical works and services package for the Project. The subcontract sum was $130,000 (plus GST).

The First Payment Claim

On or about 24 June 2015, JBK issued a payment claim to Raw Build for the sum of $7,795.70.

On 2 July 2015, JBK submitted an adjudication application under the Act with respect to the payment claim dated 24 June 2015 (the ‘First Adjudication’). The adjudication determination in respect of the First Adjudication was delivered on 30 July 2015 and held that:

(a) The sum of…

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 Raw Build Pty Ltd v JBK Industries 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: [2016] VSC 547
Decision Date: 9 SEPTEMBER 2016

CaseChat Overview and Summary

The matter before the court involved a dispute between Raw Build Pty Ltd and JBK Industries Pty Ltd, concerning a claim for payment under a building contract. The plaintiff, Raw Build, sought a judicial review of an adjudication determination that had been made in favour of the defendant, JBK Industries. The central issue before the court was whether section 28R of the Building and Construction Industry Security of Payment Act 2002 (the Act) applied to require Raw Build to make a payment into Court before proceeding with the judicial review. The court was also required to determine whether Raw Build was entitled to proceed with the judicial review despite not complying with a previous order of the Court that mandated the payment of certain moneys into Court.

The court examined the statutory provisions of the Act and considered the nature of the orders made by the Court. It held that section 28R applied in this case, requiring Raw Build to make a payment into Court before proceeding with the judicial review. The court found that the failure of Raw Build to comply with the previous order of the Court, which mandated a payment into Court, was a significant factor in determining whether it was appropriate to grant the application for judicial review. The court held that the failure to comply with the order demonstrated a disregard for the requirements of the Act and the Court’s orders, which undermined the authority of the Court. However, the court also recognised that there were exceptional circumstances in this case that warranted consideration, including the potential for significant prejudice to Raw Build if the application for judicial review were to be dismissed.

In light of the findings, the court determined that it was appropriate to grant the application for judicial review, despite the failure of Raw Build to comply with the order of the Court. The court ordered that Raw Build must make a payment into Court within 14 days of the judgment, and that the defendant, JBK Industries, must provide an undertaking to Raw Build that it would not enforce any security for debt in the meantime. This decision highlights the importance of complying with Court orders and the potential consequences of failing to do so, while also recognising the need for flexibility and fairness in the resolution of disputes under the Act.

Orders