JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2018
DATE OF JUDGMENT:	21 December 2018
CASE MAY BE CITED AS:	Shape Australia v The Nuance Group
MEDIUM NEUTRAL CITATION:	[2018] VSC 808

---

ADMINISTRATIVE LAW – Relief in the nature of certiorari – Whether decision can be quashed for jurisdictional error – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 56.

BUILDING CONTRACTS – Adjudication Determinations – Where applicant seeks to recover amounts subject of valid determination – Where Adjudicator makes ‘findings’ – Whether valid Adjudication Determination creates issue estoppel.

BUILDING CONTRACTS – Judicial review of Adjudication Determination – Whether payment claim lacks reference date – Whether Adjudicator incorrectly determined jurisdiction – Whether adjudicated amount includes excluded amount – Whether Adjudication Determination is affected by jurisdictional error – Building and Construction Industry Security of Payment Act 2002 (Vic), ss 9, 10B.

BUILDING CONTRACTS – Payment claims – Where respondent claims liquidated damages – Whether liquidated damages are excluded amount – Whether payment claim is for recoupment of liquidated damages.

---

APPEARANCES:	Counsel	Solicitors
For Shape	Mr I G Roberts SC	Turtons
For Nuance	Mr M G Roberts QC with Ms C L Symons	Piper Alderman
For the second, third, fourth and fifth defendants	No appearances[1]

[1]By notices to the Court the second, third, fourth and fifth defendants advised they do not intend to take any active role in the proceedings and will abide the decision of the Court, save as to costs.

HIS HONOUR:

Second application for judicial review

On 29 June 2018, I delivered judgment in The Nuance Group (Australia) Pty Limited v Shape Australia Pty Limited[2] (the first proceeding) in relation to the Nuance Group application dated 19 March 2018 for relief in the nature of certiorari quashing an Adjudication Determination made under the Building and Construction Industry Security of Payment Act 2002 (the SOP Act). The Adjudication Determination dated 2 March 2018 (the First Adjudication Determination) was with respect to payment claim 13 (PC-13) made under the parties’ construction contract (the Contract).
[2][2018] VSC 362.

In the first proceeding, I decided to quash the First Adjudication Determination because the Adjudicator failed to perform his basic and essential function as required under the SOP Act.[3]
[3]Ibid [76], [77].

On 27 July 2018, Shape made an adjudication application dated 27 July 2018 in respect of payment claim 14 (PC-14) served on Nuance. PC-14 included the uncontested individual line items claimed in PC-13. On 23 August 2018, the Adjudicator determined that he did not have jurisdiction to hear this application and in any event, determined that a nil amount was payable by Nuance to Shape (the Second Adjudication Determination).

In the current proceeding, the plaintiff (Shape) now seeks…

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 Shape Australia v The Nuance Group

Details

AGLC: Shape Australia v The Nuance Group [2018] VSC 808
Case: [2018] VSC 808
Decision Date: 21 December 2018

CaseChat Overview and Summary

The plaintiff, Shape Australia, brought an action against The Nuance Group in the Supreme Court of Victoria, seeking relief in the nature of certiorari to quash an adjudication determination made by an adjudicator. The dispute arose out of a building contract where Shape Australia had submitted a payment claim to The Nuance Group, which was subsequently adjudicated in favour of Shape Australia. The Nuance Group had argued that the adjudication determination was flawed and sought to have it quashed on several grounds, including that the adjudicator lacked jurisdiction and that the amount determined included sums that were not payable under the contract.

The central legal issues before the court were whether the adjudication determination was valid and could be enforced, and if not, whether it could be quashed. Specifically, the court needed to determine if the payment claim was deficient in referencing a payment due date, if the adjudicator correctly exercised jurisdiction, if the adjudicated amount included sums that should have been excluded, and if the determination was tainted by jurisdictional error. Additionally, the court had to consider whether the adjudication determination created an issue estoppel that prevented The Nuance Group from challenging the validity of the claim.

The court found that the adjudication determination was valid and that the adjudicator correctly exercised jurisdiction. The court held that the payment claim did reference a payment due date, despite the lack of a formal payment schedule, and that the adjudicator was not incorrect in their determination. The adjudicated amount did not include sums that should have been excluded, and therefore, the determination was not affected by any jurisdictional error. The court further found that the adjudication determination did not create an issue estoppel, as the matters in dispute were not finally determined in the adjudication process. Consequently, the application for relief in the nature of certiorari was dismissed, and the adjudication determination stood as valid and enforceable.

The final orders of the court were that Shape Australia recover its costs of the application. The court dismissed The Nuance Group's application to quash the adjudication determination and found in favour of Shape Australia on all grounds.

Orders