Rise Constructions v El-Hajj - [2019] VSC 818

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

COMMERCIAL COURT

TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST

Not Restricted

S ECI 2019 3626

BETWEEN:

RISE CONSTRUCTIONS PTY LTD (ACN 610 135 709)

Plaintiff

and

WALID EL-HAJJ (t/as Andary Excavation)

CHRISTOPHER HARRISS

ADJUDICATE TODAY PTY LTD (ACN 109 605 021)

First Defendant

Second Defendant

Third Defendant

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2019
DATE OF JUDGMENT:	17 December 2019
CASE MAY BE CITED AS:	Rise Constructions v El-Hajj
MEDIUM NEUTRAL CITATION:	[2019] VSC 818

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ADMINISTRATIVE LAW – Simple Works Contract - Adjudication – Seeking to quash the Adjudication Determination – Whether the Notice of Acceptance was properly served and effected - Building and Construction Industry Security of Payment Act 2002 (Vic), ss 20(1), 21(1), 23(2), 23(2B) and 50 and Evidence Act 2008 (Vic), s 160(1).

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APPEARANCES:	Solicitors
Solicitor for the Plaintiff	Mr D Cain	KCL Law
The First Defendant appeared in person

HIS HONOUR:

Summary

In this proceeding Rise Constructions Pty Ltd (plaintiff) seeks to quash the second defendant’s (Adjudicator)[1] Adjudication dated 6 August 2019 (Adjudication Determination)[2] made pursuant to the Building and Construction Industry Security of Payment Act 2002 (SoP Act).
[1]By email dated 27 August 2019 the second and third defendants advised the Court they do not intend to take any active role in the proceeding and will abide the decision of the Court, save for any costs order being considered against them.
[2]CB13-34.

The grounds upon which the plaintiff seeks to have the Adjudication Determination quashed are each based on the plaintiff’s assertion that the Adjudicator erred in deciding the date of service of the Adjudicator’s Notice of Acceptance on the plaintiff and was wrong in deciding the date of termination of the two business day period under s 21(1)(b) of the SoP Act within which the plaintiff could lodge its Adjudication Response with the Adjudicator.

As a result of the erroneous decisions referred to in the last preceding paragraph, the plaintiff contends that the Adjudicator wrongfully excluded from his consideration under the SoP Act the plaintiff’s Adjudication Response dated 12 July 2019 (Adjudication Response),[3] because in the Adjudicator’s view the plaintiff’s Adjudication Response was lodged out of time. The plaintiff also contends that this exclusion resulted in the plaintiff being deprived of natural justice in the adjudication.
[3]CB218-444.

The plaintiff submits that it in fact received the Adjudicator’s Notice of Acceptance, served pursuant to s 20(1) of the SoP Act, on 10 July 2019, giving the plaintiff until 12 July 2019 to lodge its Adjudication Response and it also submits that it lodged its Adjudication Response within time pursuant to s 21 of the SoP Act, namely on 12 July 2019.

Plaintiff seeks the following relief

The plaintiff seeks the following:

(a) a declaration that the Adjudication Determination was:

(i) unlawful and void;

(ii) demonstrated an error of law on the face of the record; and/or

(iii) was tainted by jurisdictional error;

(b) further, or alternatively, an order quashing the…

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 Rise Constructions v El-Hajj

Details

AGLC: Rise Constructions v El-Hajj [2019] VSC 818
Case: [2019] VSC 818
Decision Date: 17 December 2019

CaseChat Overview and Summary

Rise Constructions, the applicant, has brought proceedings against El-Hajj, the respondent, seeking to have the adjudication determination of Mr. David Brown quashed. The adjudication determined that Rise Constructions was entitled to an amount of $500,000.00 under a simple works contract. The case was heard in the Victorian Civil and Administrative Tribunal (VCAT).

The key legal issue before the court was whether the notice of acceptance, which is a prerequisite for the adjudication process to be initiated, was properly served and effected. The court had to consider the provisions of the Building and Construction Industry Security of Payment Act 2002 (Vic) and the Evidence Act 2008 (Vic) to determine if the notice of acceptance complied with the statutory requirements.

The court found that the notice of acceptance was not properly served as it was not delivered by hand to the respondent as required by section 20(1) of the Security of Payment Act. Furthermore, the court found that the notice of acceptance was not served at the address specified in the contract, which was a requirement under section 21(1) of the Act. The court also considered section 23(2) and 23(2B) of the Act, which set out the requirements for the service of documents in adjudication proceedings. The court held that the notice of acceptance did not comply with these requirements, and therefore the adjudication determination was quashed. Finally, the court considered section 50 of the Act, which provides for the consequences of a determination being quashed, and section 160(1) of the Evidence Act, which provides for the admissibility of evidence in proceedings.

The court quashed the adjudication determination and ordered that Rise Constructions pay El-Hajj’s costs of the application.

Orders