Legal Research
Cases
Schokman v Xception Construction Pty Ltd

Schokman v Xception Construction Pty Ltd

Case [2005] NSWSC 297 4 April 2005

No judgment structure available for this case.

Type to search within this case.

CITATION:
Vince Schokman & Anor v Xception Construction Pty Limited and Anor [2005] NSWSC 297
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 04/04/05

JUDGMENT DATE :

4 April 2005

JURISDICTION:
Equity Division
Technology and Construction List

JUDGMENT OF:
Einstein J

DECISION:
Adjudication determination held void.

CATCHWORDS:
Section 17(2) notice of intent to apply for adjudication served out of time - Adjudication application made out of time - Section 15(2)(a) makes provision for alternatives of either proceeding to recover claimed amount as a debt in curial proceedings or of making adjudication application - Where claimant elects to seek adjudication determination and adjudication procedures miscarry, claimant cannot revert to seeking judgment in curial proceedings

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

CASES CITED:
Amflo Constructions Pty Ltd v Anthony Jefferies [2003] NSWSC 856
Beckhaus Civil Pty Ltd v Council of the Shire of Brewarrina [2002] NSWSC 960
Brodyn Pty Limited t/as Time Cost and Quality v Davenport [2004] NSWCA 394

PARTIES:
Vince Schokman (First Plaintiff)
Carol Schokman (Second Plaintiff)
Xception Construction Pty Limited (First Defendant)
Barry O'Mara (Second Defendant)

FILE NUMBER(S):
SC 55060/04

COUNSEL:
Ms V Culkoff (Plaintiffs)
Mr NA Nicholls (First Defendant)

SOLICITORS:
David Campbell-Williams (Plaintiffs)
MBA Lawyers (First Defendant)

LOWER COURT JURISDICTION:

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

Einstein J

Monday 4 April 2005 ex tempore
Revised 7 April 2005

55060/04 Vince Schokman & Anor v Xception Construction Pty Limited & Anor

JUDGMENT

The proceedings

1 The proceedings before the court seek an order declaring an adjudication determination made by the second defendant on 12 August 2004 void, on the grounds that:

· the relevant payment claim was invalid as it failed to identify the construction work to which it related in breach of s 13 of the Building and Construction Industry Security of Payment Act 1999 (“Act”).

· the s 17(2) notice was served outside the 20 business day period in breach of the Act and was otherwise not a proper and valid notice as it failed to make any reference to the Act.

· accordingly, the adjudication application was made outside the prescribed period under s 17(3)(e) of the Act.

The relevant background

The contract

2 On 3 March 2003, the first defendant [“Xception”] entered into a contract with the plaintiffs [together referred to as “Schokman”] for the carrying out of construction work at Stotts Street, Bilambil Heights in New South Wales. The consideration payable under the contract was $8,750,000.

3 The contract provided that:

· an architect be appointed to administer the contract (Clauses A5 and A6);

· provision be made for the making of progress payments for the submission of a claim to the architect by the last day of each month(Clause N3.1 read with Item 24 of Schedule 1);

· the architect be required to assess the claim for a progress payment and issue to Xception and…

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 Schokman v Xception Construction Pty Ltd

Details

AGLC: Schokman v Xception Construction Pty Ltd [2005] NSWSC 297
Case: [2005] NSWSC 297
Decision Date: 4 April 2005

CaseChat Overview and Summary

The case of Schokman v Xception Construction Pty Ltd was heard in the Supreme Court of New South Wales. The parties involved were Schokman, the claimant, and Xception Construction Pty Ltd, the respondent. The dispute arose from a construction contract, with Schokman seeking to recover a debt owed to them by Xception Construction. The crux of the matter was whether Schokman could proceed with an adjudication application after having served a notice of intent to apply for adjudication outside the specified time frame, and if they could subsequently seek a judgment in curial proceedings if the adjudication process failed.

The primary legal issues the court had to address were whether the service of a Section 17(2) notice of intent to apply for adjudication out of time rendered the subsequent adjudication application invalid, and if Schokman could revert to seeking judgment in curial proceedings if the adjudication process miscarried. The court also considered whether the statutory scheme under Section 15(2)(a) allowed for alternatives between proceeding to recover the debt in curial proceedings or making an adjudication application, and if these alternatives were mutually exclusive.

The court held that the service of a Section 17(2) notice out of time did not necessarily invalidate the subsequent adjudication application. However, it emphasised that the statutory framework under Section 15(2)(a) provided alternatives for the claimant: either proceeding to recover the claimed amount as a debt in curial proceedings or making an adjudication application. Once the claimant elected to seek an adjudication determination, they could not later revert to seeking judgment in curial proceedings if the adjudication procedures miscarried. The court concluded that the statutory alternatives were mutually exclusive and that the claimant's choice of proceeding determined the exclusive path forward.

As a result, the court dismissed Schokman's application for adjudication and also precluded them from seeking judgment in curial proceedings. The court's decision underscored the importance of adhering to the statutory timelines and the exclusive nature of the chosen procedural path under the relevant legislation.

Orders