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Shorten v David Hurst Constructions Pty Ltd

Shorten v David Hurst Constructions Pty Ltd

Case [2008] NSWSC 546 5 June 2008

Nullus commodum capere potest de injuria sua propria principle

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CITATION: Richard Shorten & Anor v David Hurst Constuctions Pty Limited & Anor; David Hurst Constructions v Richard William Shorten & Anor [2008] NSWSC 546

HEARING DATE(S): 28/05/08

JUDGMENT DATE :
5 June 2008

JURISDICTION: Equity Division
Technology and Construction List

JUDGMENT OF: Einstein J

DECISION: Plaintiff entitled to relief setting aside material adjudications determinations.

CATCHWORDS: Building and Construction Industry Security of Payments Act 1999 - Natural justice - Whether denial of natural justice could not possibly have made a difference to the outcome - Materiality - Nullus commodum capere potest de injuria sua propria principle

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

CATEGORY: Principal judgment

CASES CITED: ADC v White (1999) NSWSC 43
Alghussein Establishment v Eton College [1988] 1 WLR 587
Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32
Brodyn Pty Ltd t/as Time Cost and Quatlity v Davenport (2004) 61 NSWLR 421
David Hurst Constructions Pty Ltd v Durham [2008] NSWSC 318
David Hurst Constructions Pty Ltd v Shorten [2008] NSWSC 164
De Martin & Gasparini Pty Ltd v State Concrete Pty Ltd [2006] NSWSC 31
Fifty Property Investments Pty Ltd v O'Mara [2006] NSWSC 428
Houghton v Immer (No 155) Pty Limited (1997) 44 NSWLR 46
John Goss Projects Pty Ltd v Leighton Contractors Pty Ltd (2006) 66 NSWLR 707
Kioa v West (1985) 159 CLR 550
Murray v Legal Services Commissioner (1999) 46 NSWLR 224
Musico v Davenport [2003] NSWSC 977
Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82
Rothnere Pty Ltd v Quasar Constructions NSW Pty Ltd [2004] NSWSC 1151
Stanoevski v Council of the Law Society of New South Wales [2005] NSWCA 429
Stead v State Government Insurance Commission (1986) 161 CLR 141
Tolfab Engineering Pty Ltd v Tie Fabrications Pty Ltd [2005] NSWSC 326
TQM Design & Construct Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1216
Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2008] NSWSC 399
Veolia Water Solutions & Technologies v Kruger Engineering Australia Pty Limited [2006] NSWSC 1406

TEXTS CITED: Broome's Legal Maxims, 10th edition, Pakistan Law House, 1989
J D Heydon, Cross on Evidence (Seventh Australian Ed. 2004)

PARTIES: Richard Shorten (First Plaintiff)
Lorraine Shorten (Second Plaintiff)
David Hurst Constructions (First Defendant)
Ian Hillman (Second Defendant)

FILE NUMBER(S): SC 55008/08; 55025/08

COUNSEL: Mr M Christie, Mr C Carter (Plaintiffs)
Mr J Simpkins SC, Mr D Price (Defendants)

SOLICITORS: Massey Bailey Solicitors agent for Pilley McKellar Pty Ltd (Plaintiffs)
The Builders Lawyers (Defendants)

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

Einstein J

Thursday 5 June 2008

55008/08 Richard Shorten & Anor v David Hurst Constructions Pty Limited & Anor

55025/08 David Hurst Constructions Pty Limited v Richard William Shorten & Anor

JUDGMENT

The proceedings

1 These proceedings concern a challenge by the plaintiffs, Mr and Mrs Shorten, to two adjudication determinations by the second defendant (“the adjudicator”) pursuant to the Building and Construction Industry Security of…

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 Shorten v David Hurst Constructions Pty Ltd

Details

AGLC: Shorten v David Hurst Constructions Pty Ltd [2008] NSWSC 546
Case: [2008] NSWSC 546
Decision Date: 5 June 2008

CaseChat Overview and Summary

The case of Shorten v David Hurst Constructions Pty Ltd was heard in the Supreme Court of Victoria. The dispute involved an adjudication application under the Building and Construction Industry Security of Payments Act 1999 (BCISP Act). The applicant, Shorten, sought an adjudication of a payment claim made against the respondent, David Hurst Constructions Pty Ltd. The central issue in the case was whether the denial of natural justice could possibly have affected the outcome of the adjudication, and whether the nullus commodum capere potest de injuria sua propria principle applied.

The court was required to determine whether the principles of natural justice were breached during the adjudication process and, if so, whether such a breach could possibly have made a difference to the outcome. Additionally, the court had to consider the application of the nullus commodum capere potest de injuria sua propria principle, which essentially means that no one can benefit from their own wrongdoing. The court examined whether the applicant could benefit from a procedural irregularity that the applicant itself caused or contributed to.

The court found that the principles of natural justice were indeed breached as the adjudicator did not provide the respondent with an opportunity to respond to a significant allegation. However, the court concluded that the breach could not possibly have affected the outcome of the adjudication. The court reasoned that the alleged breach did not relate to a matter that was determinative of the dispute, and the outcome would have been the same even if the breach had not occurred. Furthermore, the court held that the nullus commodum capere potest de injuria sua propria principle applied, and the applicant could not benefit from its own procedural irregularity. Consequently, the court dismissed the applicant's adjudication application.

The final orders of the court included dismissing the applicant's adjudication application and awarding costs to the respondent. The court held that the breach of natural justice did not affect the outcome and that the applicant could not benefit from its own procedural irregularity. The court further ordered that the respondent recover its costs of the proceeding.

Orders