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Transgrid v Walter Construction Group

Transgrid v Walter Construction Group

Case [2004] NSWSC 21 6 February 2004

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CITATION: Transgrid v Walter Construction Group [2004] NSWSC 21

HEARING DATE(S): 18 December 2003

JUDGMENT DATE:
6 February 2004

JUDGMENT OF: McDougall J at 1

DECISION: See paragraph [71] of judgment.

CATCHWORDS: ADMINISTRATIVE LAW - construction contracts - determination of adjudicator under Building and Construction Industry Security of Payment Act 1999 - whether jurisdiction to review - whether jurisdictional error of law - whether Superintendent's certification binding on adjudicator - whether denial of natural justice

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

CASES CITED: Musico v Davenport [2003] NSW SC 977
Abacus Funds Management v Davenport [2003] NSW SC 1027
Abacus Funds Management v Davenport [2003] NSW SC 935
Brodyn Pty Ltd v Davenport [2003] NSW SC 1019
Multiplex Constructions Pty Ltd v Luikens & Anor [2003] NSW SC 1140
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
WMC Resources v Leighton Contractors Pty Ltd [1999] WASCA 10
Coulton v Holcombe (1986) 162 CLR 1
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481
Parist Holdings Pty Ltd v W T Partnership [2003] NSW SC 365

PARTIES :
TransGrid (a State owned Corporation)
v
Walter Construction Group Ltd and
Tim Sullivan

FILE NUMBER(S): SC 30109/03

COUNSEL: F C Corsaro SC (Plaintiff)
G Inatey SC/B McManus (Defendants)

SOLICITORS: Doyles Construction Lawyers (Plaintiff)
Corrs Chambers Westgarth (Defendant 1)
Colin Biggers & Paisley (Defendant 2)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

McDOUGALL J

6 February 2004

30109/03 TRANSGRID (A STATE OWNED CORPORATION) v
WALTER CONSTRUCTION GROUP LTD & ANOR

JUDGMENT

HIS HONOUR:
Introduction

1 In these proceedings the plaintiff (“TransGrid”) seeks, in substance, judicial review of a determination (“the Determination”) made by the second defendant (“Mr Sullivan”) pursuant to s 22 of the Building and Construction Industry Security of Payment Act 1999 (“the Act”). The Determination was made on an adjudication application submitted by the first defendant (“Walter”) in respect of a payment claim under a contract made between TransGrid and Walter on about 5 April 2002 (“the contract”).

2 The payment claim was in an amount of $12,991,145.00 (excluding GST). The plaintiff’s payment schedule in response allowed an amount of $925,439.05 (excluding GST). Mr Sullivan determined that Walter was entitled to $5,010,433 (including GST).

3 The following issues were argued between TransGrid and Walter:

(2) Did Mr Sullivan fall into “jurisdictional error”?

(3) Specifically, was Mr Sullivan obliged to apply the determination of the Superintendent made pursuant to the relevant provisions of the contract, or was he entitled to re-examine the matter for himself and form his own view of Walter’s entitlement?

(4) Did Mr Sullivan deny TransGrid natural justice?

(5) If judicial review is in principle available and if grounds for review are made out, is it possible in principle to sever the affected parts of the Determination and quash only those parts?

(6) If the answer…

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 Transgrid v Walter Construction Group

Details

AGLC: Transgrid v Walter Construction Group [2004] NSWSC 21
Case: [2004] NSWSC 21
Decision Date: 6 February 2004

CaseChat Overview and Summary

Transgrid, a statutory corporation responsible for electricity transmission infrastructure, engaged Walter Construction Group, a construction company, to undertake work on an electrical substation. Disputes arose over payment for the work, and Transgrid referred the dispute to adjudication under the Building and Construction Industry Security of Payment Act 1999. The adjudicator ruled in Walter's favour, and Transgrid sought judicial review of the adjudicator's decision, arguing that the adjudicator failed to properly consider the Superintendent's certification, which outlined the reasons for the payment dispute, and that the adjudicator's process denied Transgrid natural justice.

The court considered whether it had jurisdiction to review the adjudicator's decision, and whether there had been a jurisdictional error of law. The court also examined whether the adjudicator was bound by the Superintendent's certification and whether the adjudicator's process denied Transgrid natural justice. The court found that it had jurisdiction to review the adjudicator's decision and that there had been no jurisdictional error of law. The court held that the adjudicator was not bound by the Superintendent's certification, but was required to consider it. The court also found that the adjudicator's process did not deny Transgrid natural justice.

The court dismissed Transgrid's application for judicial review, affirming the adjudicator's decision. The adjudicator's ruling that Walter was entitled to payment for the work remained in place. Transgrid was ordered to pay Walter the amount determined by the adjudicator, plus interest. The court held that the adjudicator's decision was valid and binding, and that Transgrid's arguments did not establish sufficient grounds for the court to interfere with the adjudicator's determination.

Orders