Shunshunli Pty Ltd v Seascape Constructions Pty Ltd - [2023] VSC 725

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST

S ECI 2023 01869

SHUNSHUNLI PTY LTD (ACN 169 613 012) AS TRUSTEE FOR THE XINTIANDI TRUST (ABN 11 916 705 527)	Plaintiff
v
SEASCAPE CONSTRUCTIONS PTY LTD (ACN 083 415 561)	First Defendant
JOHN MCMULLAN	Second Defendant
RIALTO ADJUDICATIONS PTY LTD (ACN 118 640 789)	Third Defendant

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JUDGE:	Stynes J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2023
DATE OF JUDGMENT:	6 December 2023
CASE MAY BE CITED AS:	Shunshunli Pty Ltd v Seascape Constructions Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 725

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ADMINISTRATIVE LAW — Judicial review — Review of adjudication determination made under the Building and Construction Industry Security of Payment Act 2002 (Vic) — Whether adjudicator considered the plaintiff’s submissions and related material — Whether the adjudicator’s reasons were so inadequate as to render the adjudication determination void — Whether the adjudicator made a bona fide attempt to conduct the adjudication — Whether the adjudicator afforded the plaintiff procedural fairness — Building and Construction Industry Security ofPayment Act 2002 (Vic) ss 21(2B), 23(2)(d), 23(3) — Adjudication determination upheld — Cockram Construction Ltd v Fulton Hogan Construction Pty Ltd (2018) 359 ALR 350, Argyle Building Services Pty Ltd v Dalanex Pty Ltd (No 2) [2022] VSC 452, applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J A Silver	Best Hooper
For the Defendant	J R Gurr SC	Ward & Co

Contents

A.. Introduction

B... Summary of Decision

C.. Background

C.1          The Contract
C.2          The Payment Claim
C.3          The Adjudication and Determination

D.. The relevant provisions of the SOP Act

E... Ground 1 — Did the Adjudicator fail to consider Shunshunli’s material in support of its assertion that it made the Advance Payments to Seascape Constructions?

E.1          Relevant legal principles - The Adjudicator’s obligation to consider material
E.2          Submissions
E.2.1        Shunshunli’s submissions
E.2.2        Seascape Constructions’ submissions

E.3 Consideration

F... Ground 2 – Did the Adjudicator fail to give adequate reasons?

F.1          Relevant legal principles - The Adjudicator’s obligation to give reasons
F.2          Submissions
F.2.1        Shunshunli’s submissions
F.2.2        Seascape Constructions’ submissions

F.3 Consideration

G.. Ground 3 – Did the Adjudicator fail to make a bona fide attempt to conduct the adjudication?

G.1 Submissions
G.2 Consideration

H.. Ground 4 – Did the Adjudicator deny Shunshunli procedural fairness?

H.1Relevant legal principles - The Adjudicator’s obligation to serve a notice under s 21(2B)
H.2         Submissions
H.2.1       Shunshunli’s submissions
H.2.2       Seascape Constructions’ submissions

H.3 Consideration

I.... Orders

HER HONOUR:

A Introduction

By Originating Motion filed on 5 May 2023, the plaintiff (‘Shunshunli’) seeks orders to the effect that the adjudication determination made by the second defendant, John McMullan (‘Adjudicator’), dated 30 April 2023 (‘Determination’) be quashed or otherwise declared void.
The Determination was delivered under the Building and Construction Industry Security of Payment Act 2002 (Vic) (‘SOP Act’) and was made in respect of a claim for final payment served by the…

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: [2023] VSC 725
Decision Date: 6 December 2023

CaseChat Overview and Summary

Shunshunli Pty Ltd, the applicant, sought judicial review of an adjudication determination made by Seascape Constructions Pty Ltd, the respondent, under the Building and Construction Industry Security of Payment Act 2002 (Vic). The determination was made in relation to a dispute concerning a payment claim submitted by Shunshunli. The matter was heard in the Supreme Court of Victoria.

The central legal issues before the court were whether the adjudicator had considered the submissions made by Shunshunli and relevant materials, whether the adjudicator's reasons were so inadequate as to render the determination void, whether the adjudicator made a bona fide attempt to conduct the adjudication, and whether the adjudicator afforded Shunshunli procedural fairness. These issues were considered in light of the relevant statutory provisions and case law, particularly Cockram Construction Ltd v Fulton Hogan Construction Pty Ltd and Argyle Building Services Pty Ltd v Dalanex Pty Ltd (No 2).

The court found that the adjudicator had considered the submissions and relevant materials, and that the adjudicator's reasons, while not perfect, were sufficient to demonstrate a bona fide attempt to conduct the adjudication. The court held that the determination was not void and that Shunshunli had not been denied procedural fairness. The court dismissed the application for judicial review and upheld the adjudication determination.

No further orders were made by the court.

Orders