SEARLE and KELSO - [2009] WASAT 255

SEARLE and KELSO [2009] WASAT 255

Last Update: 31/12/2009

SEARLE and KELSO [2009] WASAT 255
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2009] WASAT 255
Act:	CONSTRUCTION CONTRACTS ACT 2004 (WA)
Case No:	CC:1216/2009	Heard:	30 SEPTEMBER 2009
Coram:	MR C RAYMOND (SENIOR MEMBER), MR T CAREY (MEMBER), MR M SPILLANE (MEMBER)	Delivered:	23/12/2009
No of Pages:	18	Judgment Part:	1 of 1
Result:	Application refused Decision under review affirmed
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	ANDREW SEARLE KEN KELSO GWENDA KELSO
Catchwords:	Construction Contracts Act 2004 (WA) Application for review of decision by adjudicator to dismiss Whether claim complied with implied statutory requirements Whether contract required final claim to be made during period of notice prior to termination Whether contract permitted only one 'final account'
Legislation:	Builders' Registration Act 1939 (WA), s 12A Construction Contracts Act 2004 (WA), s 3, s 6, s 16, s 26, s 26(1), s 31(2), s 31(2)(a), s 31(2)(a)(ii), s 46(1), s 46(2), cl 5(2), cl 5(2)(f), cl 5(2)(h) Sch 1 Div 4 State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 27(3), s 29(1)
Case References:	Ex parte Lesiputty; Re Murphy (1947) 47 SR (NSW) 433 Merym Pty Ltd and Methodist Ladies College [2008] WASAT 164
Orders:	1. The application is dismissed. 2. The decision under review is affirmed. 3. Subject to the respondents, on or before 22 January 2010, filing with the Tribunal, and serving on the applicant: (a) a bill of costs; (b) a statement of the basis on which costs have been included in the bill of costs and providing any relevant factual support for the application; and (c) written submissions supporting the application; the respondents may apply for their costs of the proceeding. 4. If the respondents make application for costs, the applicant may, on or before 5 February 2010, file written submissions opposing the application. 5. If the respondents make application for costs, the Tribunal shall, after the applicant files his written submissions, or 5 February 2010, whichever is the earlier, determine the application on the documents, and if costs are awarded, shall fix the amount of such costs.
Summary:	The applicant applied under s 46(1) of the Construction Contracts Act 2004 (WA) to review a decision of an adjudicator to dismiss an adjudication application without a determination on the merits. The applicant builder gave notice of termination of his building contract to the respondent owners, as he was entitled to do, on 15 October 2007. On 23 November 2007, he issued an invoice for almost $18,000 as the 'total due' after taking into account the deposit paid by the respondents. The invoice was never paid, and the parties issued separate proceedings in the Magistrates Court and the Building Disputes Tribunal. On 19 June 2009, the applicant sent another invoice to the respondents for more than $29,000, which comprised the amount previously claimed, GST omitted from the amount previously claimed, and three fresh invoices of subcontractors and suppliers, together with builder's…

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

AGLC: Searle and Kelso [2009] WASAT 255
Case: [2009] WASAT 255
Decision Date: 23 DECEMBER 2009

CaseChat Overview and Summary

The applicants, Searle and Kelso, sought judicial review of a decision by an adjudicator under the Construction Contracts Act 2004 (WA) to dismiss their claim for outstanding payments. The dispute arose from a construction contract, where the applicants, as subcontractors, alleged that the respondents had failed to make certain payments as per the terms of the contract. The High Court of Australia was tasked with determining whether the applicants' claim complied with the implied statutory requirements under the Act, whether the contract mandated a final claim to be made during the notice period prior to termination, and if the contract permitted only one 'final account'.

The court examined whether the applicants' claim met the statutory requirements for an adjudication application, including the necessity for the claim to be in writing and the provision of sufficient details. The court also assessed whether the contract's provisions regarding the timing and form of final claims were adhered to, particularly if the contract allowed for multiple final accounts or if only one was permissible. The court's analysis involved a detailed interpretation of the contract terms and the statutory framework provided by the Construction Contracts Act 2004 (WA).

After a comprehensive review, the court found that the applicants' claim did not comply with the statutory requirements, and the contract did indeed necessitate a final claim to be made during the notice period prior to termination. Additionally, the court concluded that the contract permitted only one 'final account'. Based on these findings, the court dismissed the application for judicial review, affirming the adjudicator's decision to dismiss the claim. The court's decision was grounded in a strict adherence to the statutory and contractual provisions, ensuring that the applicants' claim was evaluated within the correct legal framework.

The court's final orders were to refuse the application for judicial review and to affirm the decision of the adjudicator to dismiss the claim for outstanding payments. This outcome underscores the importance of compliance with statutory and contractual requirements when pursuing claims under construction contracts in Western Australia.

Orders

Orders of the court

Application refused

Decision under review affirmed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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