Roberts Construction Group Pty Ltd v Drummond Carpentry Services Pty Ltd - [2024] VSC 246

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST

S ECI 2023 03935

ROBERTS CONSTRUCTION GROUP PTY LTD (ACN 641 105 580)	Plaintiff
v
DRUMMOND CARPENTRY SERVICES PTY LTD (ACN 618 422 549)	First Defendant
and
NICK AHERN (in his capacity as adjudicator appointed under section 20(1) of the Building and Construction Industry Security of Payment Act 2002 (Vic))	Second Defendant

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JUDGE:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2024
DATE OF JUDGMENT:	16 May 2024
CASE MAY BE CITED AS:	Roberts Construction Group Pty Ltd v Drummond Carpentry Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 246

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ADMINISTRATIVE LAW – Judicial review – Review of adjudication determination made under the Building and Construction Industry Security of Payment Act 2002 – Whether provision of particular services under relevant contract is jurisdictional fact – Question whether particular services rendered under relevant contract not jurisdictional – Whether plaintiff served valid payment schedule – Plaintiff’s emails not sufficient to constitute payment schedule – Whether valid service of adjudication application – First defendant effected valid service – Adjudication determination upheld.

Building and Construction Industry Security of Payment Act2002, ss 3, 7, 9, 14, 15, 16, 18, 21, 22, 23.

BSC Infrastructure Support v Jones Lang Lasalle [2020] VSC 739; Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd (2016) 337 ALR 452; Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA) Pty Ltd [2007] QSC 333; Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140; Perform (NSW) Pty Ltd v MEV-AUS Pty Ltd [2009] NSWCA 157; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; Saville v Hallmarc Construction Pty Ltd (2015) 47 VR 177, considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr JAF Twigg KC with Ms C Jones	Eidelweisz Lawyers Pty Ltd
For the First Defendant	Mr AT Broadfoot KC with Dr K Weston-Scheuber	Merton Lawyers
For the Second Defendant	No appearance

HIS HONOUR:

The plaintiff (‘Roberts’) seeks by way of judicial review to quash an adjudication determination under the Building and Construction Industry Security of Payment Act2002 (‘the Act’) by Nick Ahern, in his capacity as adjudicator appointed under s 20(1) of the Act (the second defendant). The determination was delivered under the Act in respect of a payment claim served on 8 June 2023 by the first defendant (‘Drummond’) on Roberts claiming the sum of $199,905.75 (GST inclusive) for labour provided under an informal labour hire agreement.

The facts

The underlying dispute arises in relation to the provision of labour hire to a construction project in Ormond, Victoria named the Two Birds Project. The project comprises 24 apartments with a concrete carport and ground floor slab. The principal and landowner for the project is Longboat Holdings Group No 4 Pty Ltd (‘Longboat’), which holds itself out as the owner builder of the project. Pursuant to a…

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: [2024] VSC 246
Decision Date: 16 May 2024

CaseChat Overview and Summary

The case before the court involved Roberts Construction Group Pty Ltd, the appellant, and Drummond Carpentry Services Pty Ltd, the respondent. The dispute arose under the Building and Construction Industry Security of Payment Act 2002, specifically concerning the adjudication process and the validity of a payment schedule and the service of an adjudication application. The court was required to determine whether the services provided by the respondent were those specified in the contract, whether the appellant had served a valid payment schedule, and whether the respondent had validly served an adjudication application. The outcome of the adjudication determination was also under scrutiny, with the court needing to assess if it was properly made.

The primary legal issues the court had to address were whether the provision of particular services under the relevant contract constituted a jurisdictional fact, and if the respondent had rendered services not specified in the contract. Another significant issue was whether the appellant had served a valid payment schedule, given that the court found the appellant's emails did not meet the statutory requirements. Additionally, the court needed to determine whether the respondent had validly served the adjudication application, which it found to be valid. The court also had to assess the validity of the adjudication determination itself.

In its reasoning, the court held that the provision of particular services under the contract was not a jurisdictional fact, thus the adjudication process could proceed despite the dispute over the nature of the services provided. The court found that the appellant had not served a valid payment schedule, as the emails sent did not constitute a valid payment schedule under the Act. However, the court did find that the respondent had effected valid service of the adjudication application. Ultimately, the adjudication determination was upheld as valid.

The final orders of the court were to dismiss the appeal, thereby upholding the adjudication determination in favour of the respondent. The court did not order any further payments or actions beyond affirming the validity of the adjudication process and its determination.

Orders