SSC Plenty Road v Construction Engineering (Aust) (No 2) - [2015] VSC 680

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST

S ECI 2015 000325

SSC PLENTY ROAD PTY LTD (ACN 124 197 128)	Plaintiff
v
CONSTRUCTION ENGINEERING (AUST) PTY LTD (ACN 392 781 199) & Anor	Defendants

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 NOVEMBER 2015
DATE OF JUDGMENT:	2 DECEMBER 2015
CASE MAY BE CITED AS:	SSC PLENTY ROAD v CONSTRUCTION ENGINEERING (AUST) (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 680

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ADMINISTRATIVE LAW – Certiorari granted – Part of determination of an adjudication under the Building and Construction Security of Payment Act 2002 (Vic) quashed – Whether invalid parts of determination should be remitted for redetermination – Whether remitted to same or different adjudicator – Considerations as to whether remittal should be to a different adjudicator.
BUILDING – Certiorari granted – Part of determination of an adjudication under the Building and Construction Security of Payment Act 2002 (Vic) quashed – Whether invalid parts of determination should be remitted for redetermination – Whether remitted to same or different adjudicator – Considerations as to whether remittal should be to a different adjudicator.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J A F Twigg QC with Dr K Weston-Scheuber	Baker & McKenzie
For the First Defendant	Mr T J Margetts QC	Piper Alderman

HIS HONOUR:

On 13 November 2015, I delivered my judgment on the main proceeding, SSC Plenty Road v Construction Engineering (Aust) (the “principal judgment”).[1] This case involved an application by the Plaintiff, SSC Plenty Road Pty Ltd, for judicial review of an adjudication determination made by the Second Defendant (the “Adjudicator”) on 21 August 2015 (the “Adjudication Determination”) under the Building and Construction Industry Security of Payment Act 2002 (Vic) (the “Act”).
[1][2015] VSC 631.

Relevantly, I found that the Adjudicator fell into jurisdictional error by failing to carry out the function assigned to him under the Act in valuing or purporting to value 33 of the 37 variation claims (the “Disallowed Variation Claims”)[2] and 3 of the 5 deduction claims (the “Disallowed Deduction Claims”)[3] listed in the payment claim made by the First Defendant, Construction Engineering (Aust) Pty Ltd (the “Defendant”) dated 1 July 2015 (the “Payment Claim”). Explanation of his error is set out in [134]–[135] and [140]–[143] of the principal judgment. In sum, the Adjudicator did not demonstrate in his Adjudication Determination any process of assessment of the value of the Disallowed Variation Claims and the Disallowed Deduction Claims other than adopting the amounts claimed by the claimant.
[2]See Annexure “A”.
[3]See Annexure “B”.

It followed that the Plaintiff succeeded in its claim for relief by way of certiorari in respect of both the Disallowed Variation Claims and Disallowed Deduction Claims.

It was, however, noted that having regard to the strict time constraints imposed by the Act within which adjudicators are required to deliver a determination, the size of the material before the Adjudicator and the complexity of 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.

Continue reading SSC Plenty Road v Construction Engineering (Aust) (No 2)

Details

AGLC: SSC Plenty Road v Construction Engineering (Aust) (No 2) [2015] VSC 680
Case: [2015] VSC 680
Decision Date: 2 DECEMBER 2015

CaseChat Overview and Summary

The matter before the court involved SSC Plenty Road and Construction Engineering (Aust), where the dispute centred around the determination made under the Building and Construction Security of Payment Act 2002 (Vic). The Federal Court was tasked with considering the validity of parts of the adjudicator's determination and whether any invalid portions should be remitted for redetermination. The court also examined whether the redetermination should be conducted by the same adjudicator or by a different one.

The central legal issues addressed by the court included the validity of the adjudicator's determination, the appropriate course of action in the event that parts of the determination were found to be invalid, and the considerations that should guide the decision on whether the redetermination should be handled by the same adjudicator or a new one. The court needed to balance the principles of fairness and the efficiency of the adjudication process while ensuring that the parties' rights were protected.

The court found that while the adjudicator's determination contained invalid portions, it was appropriate to remit these parts for redetermination rather than quashing the entire determination. The decision emphasised the importance of ensuring that the adjudicator's process remained fair and efficient. In deciding whether the redetermination should be conducted by the same or a different adjudicator, the court considered factors such as the nature of the invalidity, the potential for bias, and the interests of the parties. Ultimately, the court concluded that a different adjudicator should handle the redetermination to maintain the integrity of the process.

The final orders of the court quashed part of the adjudicator's determination, remitted the invalid parts for redetermination by a different adjudicator, and directed the parties to comply with the new determination in a timely manner. The decision underscored the need for adjudicators to carefully consider the validity of their determinations and the importance of maintaining the fairness and efficiency of the adjudication process.

Orders