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Shells Venture Management v Agresta

Shells Venture Management v Agresta

Case [2019] VSC 863 9 December 2019

Judicial Review

Natural Justice & Procedural Fairness

Administrative Law

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IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE

COMMERCIAL COURT

TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST

Not Restricted

S ECI 2019 4258

SHELLS VENTURE MANAGEMENT PTY LTD (ACN 612 291 782)

Plaintiff

ADOLFO AGRESTA (ABN 77 573 033 067)

and

JOHN McMULLAN

First Defendant

Second Defendant

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2019
DATE OF JUDGMENT:	9 December 2019
CASE MAY BE CITED AS:	Shells Venture Management v Agresta
MEDIUM NEUTRAL CITATION:	[2019] VSC 863

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ADMINISTRATIVE LAW – Judicial review – Relief in the nature of certiorari – Whether adjudication determination is vitiated by jurisdictional error – Whether a Payment Claim was served by a person entitled to a progress payment – Whether the Adjudicator correctly determined there was a reference date – Building and Construction Industry Security of Payment Act 2002 (Vic), ss 9, 14 , 28R and 51.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Reid	Oldham Construction Lawyers
For the First Defendant	Dr K Weston-Scheuber	HFW Australia

HIS HONOUR:

Application

By Originating Motion and Summons dated 18 September 2019, Shells Venture Management Pty Ltd (plaintiff), seeks orders quashing the Adjudication Determination dated 25 August 2019[1] (Adjudication Determination) made by the second defendant, Mr John McMullan,[2] (Adjudicator), on the grounds that the Adjudicator committed jurisdictional error, alternatively erred in law:

(a)Ground 1
In finding that the Payment Claim was served on the plaintiff by a person entitled to a progress payment pursuant to the Building and Construction Industry Security of Payment Act 2002 (Vic) (SoP Act).
(b)Ground 2
In finding that there was a relevant reference date supporting the Payment Claim, when no such reference date had accrued in accordance with the provisions of the Contract.
(c)Ground 3
Determining that the due date for the Payment Claim was 7 August 2019.

On 25 August 2019, the Adjudicator provided his Adjudication Determination to the plaintiff and Mr Adolfo Agresta (first defendant).

The plaintiff seeks to set aside the Adjudication Determination, pursuant to which the plaintiff is obliged to pay the first defendant the Adjudicated Amount, namely the sum of $191,053.90 (incl. GST).

In addition to written and oral submissions, the following affidavit material is relied upon by the parties:

(a) The plaintiff –

(i) Affidavit of Eddie Shell affirmed 18 September 2019 and exhibit thereto;[3] and

(ii) Affidavit of Eddie Shell affirmed 29 October 2019 and exhibits thereto.[4]

(b) The first defendant –

(i) Affidavit of Adolfo Agresta sworn 17 October 2019;[5]

(ii) Affidavit of Howard Junkeer sworn 17 October 2019 and exhibit thereto;[6]

(iii) Affidavit of Kyriakos Ioulianou sworn 4 November 2019 and exhibits thereto;[7]

Background

The first defendant is a builder of residential premises and the plaintiff is a developer in the business of developing residential premises.

The subject Adjudication Determination relates to a contract dated 29 June 2017 (Contract)[8] between the plaintiff and the first defendant for the construction of two single storey brick veneer dwellings at 99 St Pauls Road, Sorrento in the State of Victoria…

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 Shells Venture Management v Agresta

Details

AGLC: Shells Venture Management v Agresta [2019] VSC 863
Case: [2019] VSC 863
Decision Date: 9 December 2019

CaseChat Overview and Summary

The case of Shells Venture Management v Agresta was brought before the court to determine the validity of a determination made by an adjudicator under the Building and Construction Industry Security of Payment Act 2002 (Vic). Shells Venture Management sought judicial review of an adjudication determination made in favour of Agresta. The core dispute was whether the adjudicator's determination was vitiated by a jurisdictional error, specifically whether the Payment Claim was served by a person entitled to a progress payment and whether the adjudicator correctly determined the existence of a reference date.

The legal issues before the court included the interpretation of the statutory provisions and the role of the adjudicator in the adjudication process. The court had to consider whether the adjudicator correctly identified the party entitled to the progress payment and whether the adjudicator's determination of the reference date was within their jurisdiction. The court also examined the procedural fairness and the proper application of the statutory provisions.

In reaching its decision, the court carefully reviewed the statutory framework and the adjudicator's reasoning. It found that the adjudicator had correctly identified the party entitled to the progress payment and had appropriately determined the reference date. The court held that there was no jurisdictional error in the adjudicator's determination. The decision of the adjudicator was therefore upheld, and the application for judicial review was dismissed. The court's reasoning was based on the clear statutory obligations and the proper application of the provisions by the adjudicator.

The final orders of the court were that the application for judicial review be dismissed, with no orders as to costs. The determination of the adjudicator remained in place, confirming the validity of the adjudication process and the entitlement of Agresta to the progress payment as determined.

Orders