Syntech Resources Pty Ltd v Peter Campbell Earthmoving (Aust) Pty Ltd - [2011] QSC 293

SUPREME COURT OF QUEENSLAND

CITATION:

Syntech Resources Pty Ltd v Peter Campbell Earthmoving (Aust) Pty Ltd & Ors [2011] QSC 293

PARTIES:

SYNTECH RESOURCES PTY LTD
ACN 095 102 971
(applicant)
v
PETER CAMPBELL EARTHMOVING (AUST) PTY LTD
ACN 092 194 744
(first respondent)
and
ADJUDICATE TODAY PTY LTD
ACN 109 605 021
(second respondent)
and
MAX TONKIN
(third respondent)

FILE NO:

BS 2740 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

30 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2011

JUDGE:

Daubney J

ORDER:

[1] It will be declared that the adjudicator’s decision made by the third respondent dated 25 March 2011 in respect of adjudication application no.
1057877-1737 is void.

[2] I will hear the parties as to any further or consequential orders, and as to costs.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS - where the applicant seeks a declaration that the adjudication is void – where the applicant Syntech delivered its “adjudication response”, in accordance with s 24 of Building and Construction Industry Payments Act 2004 (Qld) – where a number of documents were attached to, and delivered with, Syntech’s adjudication response, including spreadsheets that had not been included in or supplied with the payment schedule – where the question is not whether the spreadsheets would or might have been admissible under the procedural and evidentiary rules applicable to Supreme Court litigation; the question is whether the adjudicator in this case failed to meet the statutory conditions which were essential for a valid decision to be made – where s 26(2)(d) required the adjudicator, in the circumstances, to consider the spreadsheets because they were part of submissions duly made – whether the adjudicator committed jurisdictional error

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS - where the applicant seeks a declaration that the adjudication is void – where the applicant Syntech delivered its “adjudication response”, in accordance with s 24 of Building and Construction Industry Payments Act 2004 (Qld) - where a number of documents were attached to, and delivered with, Syntech’s adjudication response, including spreadsheets that had not been included in or supplied with the payment schedule – where the adjudicator’s decision to exclude those spreadsheets from his consideration was based on the fact that PCE had not previously been supplied with those spreadsheets, had not had the opportunity to challenge Syntech’s position in reliance on those spreadsheets, and had thereby been denied natural justice – where in unilaterally discarding the spreadsheets without giving the parties notice of his intention of doing so, the adjudicator did commit a substantial breach of natural justice – whether the adjudicator’s decision was infected by a substantial breach of natural justice

Building and Construction Industry Payments Act 2004 (Qld), s 17, s 18, s 21, s 24, s 25, s 26

Austruc Constructions Ltd v ACA Developments Pty Ltd [2004] NSWSC 131, cited
Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421, cited

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: [2011] QSC 293
Decision Date: 30 September 2011

CaseChat Overview and Summary

In the case of Syntech Resources Pty Ltd v Peter Campbell Earthmoving (Aust) Pty Ltd, Syntech sought a declaration that the adjudication decision made by the adjudicator was void. The dispute arose from the adjudicator's handling of documents submitted by Syntech in its response to an adjudication application, particularly spreadsheets that were not included in the original payment schedule. Syntech argued that the adjudicator’s failure to consider these spreadsheets constituted a jurisdictional error and a substantial breach of natural justice, as it did not allow Peter Campbell Earthmoving (Aust) Pty Ltd the opportunity to challenge Syntech's position based on those spreadsheets.

The court was tasked with determining whether the adjudicator’s decision to exclude the spreadsheets was valid and whether this exclusion amounted to a breach of natural justice. The central issue was whether the adjudicator was obligated to consider the spreadsheets under the statutory framework and procedural rules applicable to the adjudication process. Specifically, the court examined whether the adjudicator's exclusion of the spreadsheets without notice to the parties resulted in a denial of natural justice and whether this constituted a jurisdictional error.

The court concluded that the adjudicator did indeed commit a substantial breach of natural justice by discarding the spreadsheets without notice. The court found that, under section 26(2)(d) of the Building and Construction Industry Payments Act 2004 (Qld), the adjudicator was required to consider the spreadsheets as they were part of Syntech's submissions. By excluding these documents, the adjudicator failed to meet the statutory conditions necessary for a valid decision, thus committing a jurisdictional error. Consequently, the court declared the adjudicator’s decision void and indicated that it would hear further submissions regarding consequential orders and costs.

Orders

Orders of the court

[1] It will be declared that the adjudicator’s decision made by the third respondent dated 25 March 2011 in respect of adjudication application no.

1057877-1737 is void.

[2] I will hear the parties as to any further or consequential orders, and as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Syntech Resources Pty Ltd v Peter Campbell Earthmoving (Aust) Pty Ltd & Ors [2011] QSC 293
PARTIES:	SYNTECH RESOURCES PTY LTD ACN 095 102 971 (applicant) v PETER CAMPBELL EARTHMOVING (AUST) PTY LTD ACN 092 194 744 (first respondent) and ADJUDICATE TODAY PTY LTD ACN 109 605 021 (second respondent) and MAX TONKIN (third respondent)
FILE NO:	BS 2740 of 2011
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	30 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	18 April 2011
JUDGE:	Daubney J
ORDER:	[1] It will be declared that the adjudicator’s decision made by the third respondent dated 25 March 2011 in respect of adjudication application no. 1057877-1737 is void. [2] I will hear the parties as to any further or consequential orders, and as to costs.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS - where the applicant seeks a declaration that the adjudication is void – where the applicant Syntech delivered its “adjudication response”, in accordance with s 24 of Building and Construction Industry Payments Act 2004 (Qld) – where a number of documents were attached to, and delivered with, Syntech’s adjudication response, including spreadsheets that had not been included in or supplied with the payment schedule – where the question is not whether the spreadsheets would or might have been admissible under the procedural and evidentiary rules applicable to Supreme Court litigation; the question is whether the adjudicator in this case failed to meet the statutory conditions which were essential for a valid decision to be made – where s 26(2)(d) required the adjudicator, in the circumstances, to consider the spreadsheets because they were part of submissions duly made – whether the adjudicator committed jurisdictional error CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS - where the applicant seeks a declaration that the adjudication is void – where the applicant Syntech delivered its “adjudication response”, in accordance with s 24 of Building and Construction Industry Payments Act 2004 (Qld) - where a number of documents were attached to, and delivered with, Syntech’s adjudication response, including spreadsheets that had not been included in or supplied with the payment schedule – where the adjudicator’s decision to exclude those spreadsheets from his consideration was based on the fact that PCE had not previously been supplied with those spreadsheets, had not had the opportunity to challenge Syntech’s position in reliance on those spreadsheets, and had thereby been denied natural justice – where in unilaterally discarding the spreadsheets without giving the parties notice of his intention of doing so, the adjudicator did commit a substantial breach of natural justice – whether the adjudicator’s decision was infected by a substantial breach of natural justice Building and Construction Industry Payments Act 2004 (Qld), s 17, s 18, s 21, s 24, s 25, s 26 Austruc Constructions Ltd v ACA Developments Pty Ltd [2004] NSWSC 131, cited Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421, cited