SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0011
| SSC PLENTY ROAD PTY LTD (ACN 124 197 128) | Applicant |
| v | |
| CONSTRUCTION ENGINEERING (AUST) PTY LTD (ACN 392 781 199) and JOHN McMULLAN (in his capacity as adjudicator appointed under s 20(1) of the Building and Construction Industry Security of Payment Act 2002 (Vic)) | First Respondent Second Respondent |
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| JUDGES: | SANTAMARIA, BEACH and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 April 2016 |
| DATE OF JUDGMENT: | 26 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 119 |
| JUDGMENT APPEALED FROM: | SSC Plenty Road v Construction Engineering (Aust) Pty Ltd [2015] VSC 631 (Vickery J) |
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BUILDING CONTRACTS – Building and Construction Industry Security of Payment Act 2002 (‘the Act’) – Whether a contractual provision in the relevant construction contract that mandates attendance of the parties at mediation is a ‘method of resolving disputes’ for the purposes of s 10A(3)(d)(ii) of the Act – Purpose of the Act considered – Whether adjudicator valued work in accordance with the Act – Valuation task of adjudicator under the Act considered – Whether terms of construction contract void under s 48 of the Act for inconsistency with the Act.
ADMINISTRATIVE LAW – Judicial review – Determination of an adjudicator appointed under the Building and Construction Industry Security of Payment Act 2002 – Whether error of law amounting to jurisdictional error – Whether adjudicator is bound to adopt pricing by the superintendent.
STATUTORY INTERPRETATION – Construction of legislation to be borne out by its context – CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384.
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| APPEARANCES: | Counsel | Solicitors |
| For the applicant | Mr P Solomon QC with Mr N Wood | Baker & McKenzie |
| For the first respondent | Mr T Margetts QC with Mr L Connolly | Piper Alderman |
| For the second respondent | No appearance |
SANTAMARIA JA
BEACH JA
MCLEISH JA:
Introduction
In the proceeding below, SSC Plenty Road Pty Ltd (‘SSC’) applied for judicial review of an adjudication determination made by the second respondent (‘the adjudicator’) on 21 August 2015 (‘the adjudication determination’) under the Building and Construction Industry Security of Payment Act 2002 (‘the Act’).[1]
[1]The second respondent filed a submitting appearance.
The adjudication determination arose out of a construction contract entered into on or about 20 December 2013 under which SSC, as the principal, engaged Construction Engineering (Aust) Pty Ltd (‘Construction Engineering’) as the designer and builder, to design and construct a shopping centre at 850 Plenty Road, Reservoir in Victoria (‘the Project’), for the sum of $35,554,985 (plus GST) (‘the contract’).
On 1 July 2015, Construction Engineering served a payment claim on SSC under s 14 of the Act for a ‘progress payment’ in the amount of $4,460,815.06. On 14 July 2015, SSC responded by providing a payment schedule under s 15 which indicated that it proposed to pay $967,865.02. Construction Engineering applied under s 18 of the Act for adjudication of its claim.
On 29 July 2015, Construction Engineering served on SSC an adjudication application under s 18…
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- Case
- [2016] VSCA 119
- Decision Date
CaseChat Overview and Summary
The court considered whether the adjudicator was bound to adopt the pricing by the superintendent as the court found that the adjudicator did not consider the pricing provided by the superintendent. The court found that the adjudicator was not bound to adopt the superintendent’s pricing, and the adjudicator was entitled to make an independent assessment of the evidence and determine the amount to be paid. The court also considered the purpose of the Act, which is to ensure that a claimant receives a prompt and fair determination of the disputed amount. The court found that the adjudicator had valued the work in accordance with the Act, and the adjudicator’s determination was not an error of law.
The court further considered whether the contractual requirement for mediation was inconsistent with the Act. The court found that the Act does not preclude the parties from agreeing to a method of resolving disputes, and the requirement for mediation did not amount to an inconsistency with the Act. The court also found that the terms of the construction contract were not void under section 48 of the Act for inconsistency with the Act.
The court held that the adjudicator's determination was not an error of law and was not void. The court dismissed the proceedings brought by SSC Plenty Road Pty Ltd.
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
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Ratio Decidendi
Legal Principle Established
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