SILENT VECTOR PTY LTD T/AS SIZER BUILDERS and SQUARCINI [2008] WASAT 39
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 39 | |
| CONSTRUCTION CONTRACTS ACT 2004 (WA) | |||
| Case No: | CC:1673/2007 | 27 NOVEMBER 2007 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) MR P PINDER (SENIOR SESSIONAL MEMBER) | 21/02/08 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Application granted Decision under review set aside | ||
| B | |||
| PDF Version |
| Parties: | SILENT VECTOR PTY LTD T/AS SIZER BUILDERS JOHN SQUARCINI |
Catchwords: | Application for review of decision by adjudicator dismissing application without determination on the merits Whether application could not be fairly determined because of complexity Whether application not made within prescribed time Adequacy of reasons for decision |
Legislation: | Construction Contracts Act 2004 (WA), s 6, s 25, s 26, s 30, s 31, s 32(2), s 34, s 36, s 37, s 46 Interpretation Act 1984 (WA), s 18, s 19 State Administrative Tribunal Act 2004 (WA), s 5, s 27, s 29, s 87 |
Case References: | Aydogan and Town of Cambridge & Anor [2007] WASAT 19 Brodyn Pty Ltd t/as Time Cost and Quality v Davenport [2004] 61 NSWLR 421 Marine & Civil Bauer Joint Venture and Leighton Kumagai Joint Venture [2005] WASAT 269 Project Blue Sky Inc & Anor v Australian Broadcasting Authority (1998) 194 CLR 355 Riley v the State of Western Australia [2005] WASCA 190 Transgrid v Siemens Ltd [2004] 61 NSWLR 521 at 539 Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2007] NSWSC 941 |
Orders | 1. The decision of the adjudicator dated 11 October 2007, dismissing the application under s 31(2)(a) of the Construction Contracts Act 2004 (WA) is set aside.,2. The above decision is reversed, and the Tribunal's decision substituted, to the effect that the application is dismissed only in respect of those payment disputes which arose as a result of the rejection of payment claims incorporated in progress claims preceding progress claim 32.,3. Subject to any application for costs being filed and served within 14 days of the date of this order, the parties have liberty to so apply, detailing the costs claimed and setting out in writing submissions as to why such costs should be allowed.,4. The other party must, within 14 days of service of such costs application and submissions, file and serve any written submissions upon which it wishes to rely in opposition.,5. Unless the Tribunal orders otherwise, any application for costs shall be determined on the documents. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : CONSTRUCTION CONTRACTS ACT 2004 (WA) CITATION : SILENT VECTOR PTY LTD T/AS SIZER BUILDERS and SQUARCINI [2008] WASAT 39 MEMBER : MR C RAYMOND (SENIOR MEMBER)
- MR P PINDER (SENIOR SESSIONAL MEMBER)
- Applicant
AND
JOHN SQUARCINI
Respondent
Catchwords:
Application for review of decision by adjudicator dismissing application without determination on the merits -…
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- AGLC
- SILENT VECTOR Pty Ltd T/As SIZER BUILDERS and SQUARCINI [2008] WASAT 39
- Case
- [2008] WASAT 39
- Decision Date
CaseChat Overview and Summary
Silent Vector Pty Ltd, trading as Sizer Builders, applied for a review of a decision by an adjudicator who dismissed their application without determining it on its merits. The dispute arose under the Construction Contracts Act 2004 (WA), with SQUARCINI as the other party. The application for review was filed with the Construction Contracts Tribunal, which was required to determine whether the adjudicator's decision was correct and whether the application could be fairly determined due to the complexity of the issues, whether it was made within the prescribed time, and the adequacy of reasons provided for the decision.
The legal issues before the Tribunal included the validity of the adjudicator's decision in dismissing the application without determining it on the merits, the fairness of determining the application due to the complexity of the issues, whether the application was made within the prescribed time, and whether the reasons provided by the adjudicator for his decision were adequate. The Tribunal had to consider whether the adjudicator correctly exercised his discretion in dismissing the application without determining it on the merits and whether the reasons provided for the dismissal were sufficient.
The Tribunal found that the adjudicator did not correctly exercise his discretion in dismissing the application without determining it on the merits. The Tribunal held that the application could be fairly determined despite the complexity of the issues, and that the application was made within the prescribed time. The Tribunal also found that the reasons provided by the adjudicator for his decision were inadequate. The Tribunal set aside the adjudicator's decision and substituted its own decision, dismissing the application only in respect of those payment disputes which arose as a result of the rejection of payment claims incorporated in progress claims preceding progress claim 32. The Tribunal also granted the parties liberty to apply for costs, subject to certain conditions.
The final orders of the Tribunal were that the adjudicator's decision dated 11 October 2007 was set aside and reversed, and the Tribunal's decision substituted to the effect that the application was dismissed only in respect of those payment disputes which arose as a result of the rejection of payment claims incorporated in progress claims preceding progress claim 32. The parties were granted liberty to apply for costs, subject to certain conditions, and the other party was required to file and serve any written submissions in opposition within 14 days of service of such costs application and submissions. Unless the Tribunal ordered otherwise, any application for costs was to be determined on the documents.
The legal issues before the Tribunal included the validity of the adjudicator's decision in dismissing the application without determining it on the merits, the fairness of determining the application due to the complexity of the issues, whether the application was made within the prescribed time, and whether the reasons provided by the adjudicator for his decision were adequate. The Tribunal had to consider whether the adjudicator correctly exercised his discretion in dismissing the application without determining it on the merits and whether the reasons provided for the dismissal were sufficient.
The Tribunal found that the adjudicator did not correctly exercise his discretion in dismissing the application without determining it on the merits. The Tribunal held that the application could be fairly determined despite the complexity of the issues, and that the application was made within the prescribed time. The Tribunal also found that the reasons provided by the adjudicator for his decision were inadequate. The Tribunal set aside the adjudicator's decision and substituted its own decision, dismissing the application only in respect of those payment disputes which arose as a result of the rejection of payment claims incorporated in progress claims preceding progress claim 32. The Tribunal also granted the parties liberty to apply for costs, subject to certain conditions.
The final orders of the Tribunal were that the adjudicator's decision dated 11 October 2007 was set aside and reversed, and the Tribunal's decision substituted to the effect that the application was dismissed only in respect of those payment disputes which arose as a result of the rejection of payment claims incorporated in progress claims preceding progress claim 32. The parties were granted liberty to apply for costs, subject to certain conditions, and the other party was required to file and serve any written submissions in opposition within 14 days of service of such costs application and submissions. Unless the Tribunal ordered otherwise, any application for costs was to be determined on the documents.
Orders
Orders of the court
1. The decision of the adjudicator dated 11 October 2007, dismissing the application under s 31(2)(a) of the Construction Contracts Act 2004 (WA) is set aside. 2. The above decision is reversed, and the Tribunal's decision substituted, to the effect that the application is dismissed only in respect of those payment disputes which arose as a result of the rejection of payment claims incorporated in progress claims preceding progress claim 32. 3. Subject to any application for costs being filed and served within 14 days of the date of this order, the parties have liberty to so apply, detailing the costs claimed and setting out in writing submissions as to why such costs should be allowed. 4. The other party must, within 14 days of service of such costs application and submissions, file and serve any written submissions upon which it wishes to rely in opposition. 5. Unless the Tribunal orders otherwise, any application for costs shall be determined on the documents.
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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