Total Eden Pty Ltd v Eca Systems Pty Ltd - [2017] WASC 58

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: TOTAL EDEN PTY LTD -v- ECA SYSTEMS PTY LTD [2017] WASC 58

CORAM: PRITCHARD J

HEARD: 9 FEBRUARY 2017

DELIVERED : 9 FEBRUARY 2017

FILE NO/S: CIV 1202 of 2017

BETWEEN: TOTAL EDEN PTY LTD
Plaintiff
AND
ECA SYSTEMS PTY LTD
Defendant

Catchwords:

Practice and Procedure - Remittal

Practice and Procedure - Suspension of enforcement of determination of adjudicator under Construction Contracts Act 2004 (WA) - Special circumstances - Reasonable prospects of success - Balance of convenience

Legislation:

Civil Judgments Enforcement Act 2004 (WA)

Construction Contracts Act 2004 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff: Mr D Shaw
Defendant: Mr R Blow

Solicitors:

Plaintiff: Gandhi and Shaw
Defendant: Lateral Legal

Cases referred to in judgment:

Alliance Contracting Pty Ltd v James [2014] WASC 212
Chantec Pty Ltd v Comgroup Supplies Pty Ltd [2001] WASCA 238
Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 176 ALR 693
Cooper & Oxley Builders Pty Ltd v Steensma [2016] WASC 386
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307
Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689
Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2015] WASC 237
Love v KWS Capital Pty Ltd [2013] WASC 466
Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328
Re Graham Anstee-Brook; Ex parte Karara Mining Ltd [2012] WASC 129
PRITCHARD J:
(This judgment was delivered extemporaneously on 9 February 2017 and has been edited from the transcript.)

This is an application brought by the plaintiff (Total Eden) for orders that the Court remit District Court of Western Australia action CIVO 1202 of 2016 to this Court to be heard with CIV 3206 of 2016. CIV 3206 of 2016 is an application by Total Eden for judicial review of a determination made by an adjudicator (the adjudicator) pursuant to the Construction Contracts Act 2004 (WA). In addition, Total Eden seeks an order, pursuant to s 15 of the Civil Judgments Enforcement Act 2004 (WA), suspending the enforcement of the judgment obtained in CIVO 1212 of 2016 until the determination of the judicial review application (the suspension application).
For the reasons which I am about to give, Total Eden succeeds in its application. I will make an order that the proceedings in the District Court CIVO 1212 of 2016, be remitted to this Court, and I will make an order that there be a suspension of the enforcement of the judgment obtained in that proceeding until the determination of the judicial review application.
In these reasons, I will deal with the following matters:
1.A brief outline of the facts;
2.whether CIVO 1202 of 2016 should be remitted from the District Court to this Court; and
3.whether the suspension application should be granted, having regard to the existence of special circumstances, reasonable prospects of success and the balance of convenience.

A brief outline of the facts

The facts are somewhat convoluted…

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: [2017] WASC 58
Decision Date: 9 FEBRUARY 2017

CaseChat Overview and Summary

The applicant, Total Eden, has brought an application to this Court for the determination of whether an action brought in the District Court by ECA Systems should be remitted to this Court. The action by ECA Systems seeks to enforce a determination made by an adjudicator in favour of ECA Systems under a construction contract. The determination has already been enforced in the District Court on two occasions, leading to two judgments of the District Court. The present application by ECA Systems seeks to enforce the second of those judgments. The application by Total Eden seeks to suspend the enforcement of the second judgment and to have the action remitted to this Court.

The central issue in the case is whether this Court should remit the action brought by ECA Systems in the District Court. The Court must determine if there are special circumstances which warrant the exercise of the power to remit under s 76 of the District Court Act 1969 (WA). In addition, the Court must consider whether there are reasonable prospects of success on the merits of the case and whether the balance of convenience favours the making of the order sought. This involves weighing the competing interests of the parties and the potential for prejudice or injustice if the action is not remitted.

The Court considered the relevant statutory provisions and case law regarding the power to remit. It found that there were special circumstances warranting the exercise of the power to remit, including the existence of two judgments in respect of the same determination and the potential for an abuse of the process of the Court. The Court also found that there were reasonable prospects of success on the merits of the case and that the balance of convenience favoured the making of the order sought. The Court therefore remitted the action to this Court.

The Court made an order remitting the action to this Court and directed that the application to suspend enforcement be heard in this Court. The Court also made orders for costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

A brief outline of the facts The facts are somewhat convoluted and the following does not attempt to encapsulate in any detail all of the circumstances, but simply focuses on the facts which are relevant for present purposes. A determination was made by the adjudicator on 1 November 2016 in respect of a claim by ECA Systems for payment of an amount said to be due under a construction contract (the determination). Prior to the end of 2016, an application for judicial review of the determination was made in this Court contending various jurisdictional errors by the adjudicator in reaching his determination. In the meantime, an application had been made by ECA Systems to enforce the determination as a judgment of the District Court. At the time that application was made, s 43 of the Construction Contracts Act was not in the same terms as it is now. The applicable procedure at that time required an application for leave to be made to the District Court for the enforcement of the determination as a judgment of that Court. It appears, for reasons that I need not grapple with at the moment, that the District Court simply 'registered' the determination as a judgment of the Court without providing Total Eden with the opportunity to be heard in respect of the question of leave, and despite its request that it have an opportunity to be heard in respect of that matter. When that difficulty was drawn to the attention of ECA Systems, it appears that it sought to do two things almost simultaneously. First, its solicitors wrote to the District Court Registrar and requested that the first judgment be 'discontinued'. At the same time, ECA Systems made a further application to the District Court for the enforcement of the determination. By that stage, s 43 of the Construction Contracts Act had been amended to streamline the process by which a determination of an adjudicator is enforced in a court. The effect of that amendment is that on the filing of an application to a court for a determination to be treated as a judgment of the court, that determination is taken to be an order of the court. At the time that ECA Systems made its second application to enforce the determination, it was not drawn to the attention of the District Court that there was on foot an earlier judgment of the Court in respect of the same determination. The District Court proceeded to record the determination as a judgment of the Court. That led to what seems, on the face it, to be an abuse of the process of the Court because there were, and remain, two judgments of the District Court in respect of the determination. Against all that background, ECA Systems has now sought to enforce the second of those judgments through action by the sheriff, which has led to the present application to suspend that enforcement process. Whether CIVO 1202 of 2016 should be remitted to this court Total Eden has made an application to the District Court to suspend the enforcement of the determination and now makes the application to remit the action in which that application is made to this Court. The Court clearly has a power to remit under s 76 of the District Court Act 1969 (WA). That section provides that upon the application of any of the parties to an action or matter brought in the District Court, a judge of this Court may order that the action or matter be tried or heard in the Supreme Court.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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