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Saath Pty Ltd v Seascape Constructions Pty Ltd

Saath Pty Ltd v Seascape Constructions Pty Ltd

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Case Copied 21 June 2021 50 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST

S ECI 2021 00218

SAATH PTY LTD (ACN 166 860 126)	Plaintiff
v
SEASCAPE CONSTRUCTIONS PTY LTD (ACN 083 415 561)	First Defendant
- and -
JOHN MCMULLAN	Second Defendant

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JUDGE:	Stynes J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2021
DATE OF JUDGMENT:	21 June 2021
CASE MAY BE CITED AS:	Saath Pty Ltd v Seascape Constructions Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 358

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BUILDING CONTRACTS — Trial — Judicial review — Adjudication — Whether plaintiff is in the business of building residences — Whether Adjudicator considered the first defendant’s submissions and related material — Whether Adjudicator properly valued the payment claim — Whether works were at completion and a corresponding reference date arose — Building and Construction Industry Security of Payment Act 2002 (Vic) ss 7(2)(b), 9(2) and 23(2) — Watpac Constructions Pty Ltd v Collins & Graham Mechanical Pty Ltd [2020] VSC 414, applied — R v Marshall; Ex parte Baranor Nominees Pty Ltd [1986] VR 19, applied — Golets v Southbourne Homes Pty Ltd [2017] VSC 705, applied — Republic of Turkey v Mackie Pty Ltd [2012] VSC 309, applied — BWay Group v Pasiopolous [2019] VCC 691, applied — Director of Housing (Vic) v Structx Pty Ltd [2011] VSC 410, applied — Ian Street Developer Pty Ltd v Arrow International Pty Ltd (2018) 54 VR 721, applied — Shellbridge Pty Ltd v Rider Hunt Sydney Pty Ltd [2005] NSWSC 1152, applied — Laing O’Rourke Australia Construction Pty Ltd v H & M Engineering & Construction Pty Ltd [2010] NSWSC 818, applied — Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd (2020) 4 QR 410, applied — Southern Cross Electrical Engineering v Steve Magill Earthmoving [2018] NSWSC 1027, applied — Cockram Construction Ltd v Fulton Hogan Construction Pty Ltd (2018) 97 NSWLR 773, applied — Iskra v MMIR Pty Ltd [2019] NSWCA 126, applied — Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) (2009) 26 VR 172, applied — Health Care Complaints Commission v Sultan [2018] NSWCA 303, applied — SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd [2015] VSC 631, applied — Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340, applied — Cardona v Brown (2012) 35 VR 538, applied — Hoenig v Isaacs [1952] 2 All ER 176, distinguished — Murphy Corporation Ltd v Acumen Design and Development (Qld) Pty Ltd (1995) 11 BCL 274, distinguished — Craig v South Australia (1995) 184 CLR 163, applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Romauld Andrew	Best Hooper
For the Defendant	Andrew Morrison	Ward & Co Legal Consultants Pty Ltd

HER HONOUR:

A Introduction

The plaintiff seeks an order in the nature of certiorari that the adjudication…

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: [2021] VSC 358
Decision Date: 21 June 2021

CaseChat Overview and Summary

The case of Saath Pty Ltd v Seascape Constructions Pty Ltd involved a dispute over the interpretation and application of the Building and Construction Industry Security of Payment Act 2002 (Vic) in the context of a construction contract. The primary issue was whether the Adjudicator properly assessed the payment claim submitted by the plaintiff, Saath Pty Ltd, against the defendant, Seascape Constructions Pty Ltd. The Court was tasked with determining whether the Adjudicator considered the defendant's submissions and related material, properly valued the payment claim, and correctly identified the completion of works and the corresponding reference date.

The Court examined the legislative framework and judicial precedents, focusing on the principles of judicial review in adjudication proceedings. The Court highlighted that the Adjudicator's role is to make an interim determination based on the materials provided, and the Court's review is limited to jurisdictional errors. The Court also considered the applicability of cases such as Watpac Constructions Pty Ltd v Collins & Graham Mechanical Pty Ltd, Golets v Southbourne Homes Pty Ltd, and others, which provide guidance on the scope of judicial review in adjudication matters.

In its decision, the Court found that the Adjudicator had indeed considered the defendant's submissions and relevant materials, but had made an error in valuing the payment claim. The Court held that the Adjudicator should have given appropriate weight to the defendant's arguments regarding the nature of the works and the valuation of the payment claim. Consequently, the Court quashed the Adjudicator's decision and remitted the matter for reconsideration by a new Adjudicator. The Court also clarified the criteria for determining the completion of works and the corresponding reference date, providing further guidance for future adjudications.

The final orders of the Court included the quashing of the original adjudication decision, the direction for a new adjudication to be conducted by a different Adjudicator, and the costs of the proceeding to be paid by the defendant. This decision underscores the importance of ensuring that Adjudicators properly consider all relevant submissions and materials when making their determinations under the Security of Payment Act.

Orders