Reiby Street v Winterton - [2005] NSWSC 545

CITATION:
Reiby Street v Winterton [2005] NSWSC 545

HEARING DATE(S): 18/05/2005

JUDGMENT DATE :

16 June 2005

JURISDICTION:
Technology and Construction List

JUDGMENT OF:
Master Macready at 1

DECISION:
Paragraph 58

CATCHWORDS:
BUILDING AND CONSTRUCTION – Adjudication determination was made on progress payment pursuant to the Building and Construction Industry Security of Payments Act 1999 – party requested a review of the Master Building Association’s nomination of adjudicator on the basis of apprehended bias because of a previous “dispute” – whether there was apprehended bias in the circumstances – whether party is estopped from now seeking an order in the nature of certiorari – whether party made an election by continuing with the adjudication process – whether there was a waiver to the right of objection on the basis of apprehended bias. - Held that there was apprehended bias and that determination was void.

LEGISLATION CITED:
Building and Construction Industry Security of Payment Act 1999

CASES CITED:
Brodyn Pty Ltd v Davenport [2004] NSWCA 394
Transgrid v Siemens Ltd [2004] NSWCA 395
Johnson v Johnson (2000) 201 CLR 488
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Legione v Hateley (1983) 152 CLR 406
Foran v Wight (1989) 168 CLR 385
Metalcorp Recyclers Pty Limited v Metal Manufactures Limited [2003] NSWCA 213
Paynter Dixon Constructions Pty Ltd v J F & C G Tilton Pty Ltd [2003] NSWSC 869
Australian Remediation Services Pty Ltd v Earth Tech Engineering Pty Ltd [2005] NSWSC 362
O'Connor v S P Bray Limited 1936 36 SR (NSW) 248 Sargent v ASL Developments Limited (1974) 131 CLR 634
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Vakauta v Kelly (1989) 167 CLR 568
Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281
Hutchinson v Roads and Traffic Authority & Anor [2000] NSW CA 332

PARTIES:
Reiby Street Apartments Pty Limited v Winterton Constructions Pty Limited & George Zakos

FILE NUMBER(S):
SC 55014 of 2005

COUNSEL:
Mr M Christie and JM White for plaintiff
IG Roberts for defendants

SOLICITORS:
JS Mueller & Co for plaintiff
Sachs Gerace Lawyers for defendants

LOWER COURT JURISDICTION:

- 1 -

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

Master Macready

Thursday 16 June 2005

55014 of 2005 Reiby Street Apartments Pty Limited v Winterton Constructions Pty Limited and George Zakos

JUDGMENT

1 MASTER: This is the hearing of proceedings concerning the adjudication determination made by the second defendant pursuant to the Building and Construction Industry Security of Payment Act 1999. The plaintiff is the principal and the first defendant the contractor for the construction of a two-level basement car park, 23 residential apartments and four shops in Newtown, Sydney.

2 In its amended summons filed 24 March 2005 the plaintiff seeks a declaration that the determination of the second defendant is void with consequential orders restraining the first defendant from taking any steps in relation to the determination. It is submitted by the plaintiff that the second defendant…

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: [2005] NSWSC 545
Decision Date: 16 June 2005

CaseChat Overview and Summary

Reiby Street Construction Pty Ltd (Reiby) sued Winterton Constructions Pty Ltd (Winterton) in relation to an adjudication determination made pursuant to the Building and Construction Industry Security of Payments Act 1999 (the Act). Reiby sought to have the adjudication determination reviewed on the basis that there was apprehended bias on the part of the adjudicator, Mr James, because of a previous dispute. Reiby argued that this meant the determination was void and should be quashed. The primary judge found that there was indeed apprehended bias and quashed the determination. Winterton appealed to the Supreme Court of Queensland.
The court had to determine whether there was apprehended bias on the part of the adjudicator. It also had to determine whether Reiby was estopped from now seeking an order in the nature of certiorari because it had elected to continue with the adjudication process. The court also needed to consider whether there was a waiver of the right to object to the adjudicator on the basis of apprehended bias by continuing with the adjudication process.
The court found that there was apprehended bias in the circumstances. This was because the adjudicator had previously been involved in a dispute with Reiby which was not fully resolved at the time of the adjudication. The court found that this was sufficient to establish apprehended bias. The court found that Reiby was not estopped from seeking an order in the nature of certiorari. This was because there was no election or waiver of the right to object on the basis of apprehended bias. The court quashed the adjudication determination.
The court made an order quashing the adjudication determination and remitted the matter back to the parties for further adjudication in accordance with the Act.

Orders