| 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…
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- Case
- [2023] VSC 725
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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