Shellbridge Pty Ltd v Rider Hunt Sydney Pty Ltd - [2005] NSWSC 1152

CITATION:
Shellbridge Pty Ltd v Rider Hunt Sydney Pty Ltd [2005] NSWSC 1152

HEARING DATE(S): 08/11/05

JUDGMENT DATE :

14 November 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Barrett J

DECISION:
Summons dismissed with costs

CATCHWORDS:
BUILDING AND CONSTRUCTION - progress payments - Building and Construction Industry Security of Payment Act - duty of adjudicator to consider submissions as incident of measure of natural justice required by the Act - whether duty discharged

LEGISLATION CITED:
Building and Construction Industry Security of Payment Act 1999, ss.8(2)(b), 13, 17, 21(4)(a), 25

CASES CITED:
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421
Bromley v The Queen (1986) 161 CLR 315
Co-ordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd [2005] NSWCA 228
Falgat Constructions Pty Ltd v Equity Australia Corp Pty Ltd (2005) 62 NSWLR 385
Holdmark Developers Pty Ltd v G J Formwork Pty Ltd [2004] NSWSC 905
Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31
Timwin Construction Pty Ltd v Façade Innovations Pty Ltd [2005] NSWSC 548

PARTIES:

Shellbridge Pty Ltd - Plaintiff
Rider Hunt Sydney Pty Ltd - Defendant

FILE NUMBER(S):
SC 5677/05

COUNSEL:
Mr P.M. Barham - Plaintiff
Mr B. DeBuse - Defendant

SOLICITORS:
John Ajaka - Plaintiff
Home Wilkinson Lowry - Defendants

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

MONDAY, 14 NOVEMBER 2005

5677/05 SHELLBRIDGE PTY LTD v RIDER HUNT SYDNEY PTY LTD

JUDGMENT

1 The plaintiff seeks a declaration that an adjudication made under the Building and Construction Industry Security of Payment Act 1999 is void. The defendant is a quantity surveyor. It is not disputed that services of the kind it provides in the ordinary course of its business are within the definition of “construction work” in s.5 of the Act.

2 The adjudicator’s determination is dated 24 October 2005. It does not, in terms, identify the payment claim (s.13), payment schedule (s.14) and adjudication application (s.17) that the adjudicator considered to represent the foundation for his decision. However, an adjudication application made by the defendant and dated 28 September 2005 is the only such application in evidence. It referred to a payment claim served on 24 September 2005 (being a payment claim in the sum of $14,025) and a payment schedule served on 27 September 2005 (indicating an intention to make no payment). It must follow that it was by reference to the claim to which those three documents related that the adjudicator made his decision. This is borne out by several other pieces of documentary evidence, including the single nomination by the nominating authority dated 5 October 2005 nominating Mr Whelan as adjudicator and the identification by the plaintiff’s solicitor in a letter of 11 October 2005 to Mr Whelan of 28 September 2005 as the date of the defendant’s adjudication application.

3 The plaintiff’s contention that the adjudication is void is made…

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: [2005] NSWSC 1152
Decision Date: 14 November 2005

CaseChat Overview and Summary

The matter before the court involved Shellbridge Pty Ltd, the applicant, and Rider Hunt Sydney Pty Ltd, the respondent, in a dispute over progress payments under the Building and Construction Industry Security of Payment Act. The court was tasked with determining whether the adjudicator's duty to consider the submissions of the parties as an incident of natural justice required by the Act had been discharged. The respondent had issued a pay-less notice to the applicant, and the applicant sought an adjudication under the Act, which was conducted by an adjudicator appointed by the parties. The applicant was ultimately awarded a sum, but the respondent sought to overturn the adjudicator's decision.

The primary legal issue before the court was whether the adjudicator had a duty to consider the submissions of the parties as an incident of natural justice, and if so, whether this duty had been discharged. The respondent argued that the adjudicator had failed to consider certain submissions made by the respondent, which meant that the adjudicator's decision could not stand. The applicant, on the other hand, contended that the adjudicator had fulfilled their duty and that the submissions in question had been considered.

The court found that the adjudicator had a duty to consider the submissions of the parties as an incident of natural justice, as required by the Act. The court held that the adjudicator's failure to explicitly reference certain submissions in their decision did not necessarily mean that those submissions had not been considered. Instead, the court found that the adjudicator had considered the relevant submissions and had made findings that were consistent with the respondent's submissions. As such, the adjudicator had discharged their duty, and the decision could not be overturned on this basis.

The court ultimately dismissed the respondent's appeal and affirmed the adjudicator's decision. The court found that the adjudicator had considered the relevant submissions and had made findings that were consistent with the respondent's submissions. The court held that the adjudicator had discharged their duty as required by the Act, and that the decision could not be overturned on this basis. As such, the applicant was entitled to the sum awarded by the adjudicator.

Orders