Valeo Construction v Tiling Expert - [2019] VSC 291

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMERCIAL COURT
TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST

Not Restricted

S ECI 2018 2136

VALEO CONSTRUCTION PTY LTD (ACN 139 755 801) as Trustee for Valeo Construction Trust	Plaintiff
v
TILING EXPERT (VIC) PTY LTD (ACN 602 396 609) and PHILIP MARTIN	Defendants

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2019
DATE OF JUDGMENT:	9 May 2019
CASE MAY BE CITED AS:	Valeo Construction v Tiling Expert
MEDIUM NEUTRAL CITATION:	[2019] VSC 291

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ADMINISTRATIVE LAW – Judicial review – Relief in the nature of certiorari – Injunctions – Declarations – Whether Adjudication Determination is vitiated by jurisdictional error – Error of law on the face of the record - Review of jurisdictional facts - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 56.

BUILDING CONTRACTS – Whether settlement agreement was a genuine resolution of matters in dispute and whether such agreement amounted to contracting out of the Building and Construction Industry Security of Payment Act 2002 (Vic), ss 9, 14, 21(2B), 23(2), 48.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Reid	Giannakopoulos Solicitors
For the First Defendant	Mr N Phillpott	Oldham Construction Lawyers

HIS HONOUR:

Application

By Originating Motion dated 5 November 2018 the plaintiff, Valeo Construction Pty Ltd (Valeo), seeks judicial review of an Adjudication Determination made by the second defendant, Mr Philip Martin (the Adjudicator),[1] on 23 August 2018 (the Adjudication Determination) under the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOP Act).
[1]By letter dated 13 November 2018, the second defendant advised the Court he does not intend to take any active role in the proceeding and will abide the decision of the Court, save for any costs order being considered against him.

By its Originating Motion Valeo seeks:

(a) to restrain the first defendant, Tiling Expert (Vic) Pty Ltd (Tiling Expert), whether by itself, its servants, or otherwise howsoever from seeking to enforce or take action under the SOP Act in relation to the Adjudication Determination;

(b) to restrain the Adjudicator whether by himself, his servants or otherwise howsoever from providing an Adjudication Certificate in respect of the Adjudication Determination;

(c) a declaration that the Adjudication Determination is unlawful and void; and

(d) an order in the nature of certiorari quashing the Adjudication Determination.

In addition to written and oral submissions, the following Affidavit material is relied upon by the parties:

(a) Valeo:

(i) Affidavit of Dimitrios Tzouvelis sworn 1 November 2018, and exhibits thereto;[2] and
[2]CB69-399.

(ii) Affidavit of Tom Tziouvelis sworn 2 November 2018, and exhibits thereto.[3]
[3]CB400-550.

(b) Tiling Expert:

(i) Affidavit of Mohammadi Nazari affirmed 18 December 2018.[4]

[4]CB551-554.

Background
The Contract

It is common ground between the parties that pursuant to the relevant construction contract dated 16 August 2017,[5] Tiling Expert carried out work and reached practical completion on 21 December 2017.[6]
[5]CB124-CB147; CB118, [2]; CB215, [1].
[6]CB118, [3]; CB222, [38].

The construction contract for tiling and associated works at…

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: [2019] VSC 291
Decision Date: 9 May 2019

CaseChat Overview and Summary

The case of Valeo Construction v Tiling Expert involved a dispute between two parties in the building industry. Valeo Construction sought judicial review of an adjudication determination that had been made in favour of Tiling Expert. Valeo Construction argued that the determination was vitiated by jurisdictional error and that the settlement agreement between the parties was not a genuine resolution of the matters in dispute. The dispute was heard in the Supreme Court of Victoria.

The court had to decide whether the adjudication determination was vitiated by jurisdictional error and whether the settlement agreement was a genuine resolution of the matters in dispute. The court also had to consider whether the settlement agreement amounted to contracting out of the Building and Construction Industry Security of Payment Act 2002 (Vic). The court examined the terms of the settlement agreement and the evidence presented by both parties.

The court found that the adjudication determination was not vitiated by jurisdictional error. The court also found that the settlement agreement was a genuine resolution of the matters in dispute and that it did not amount to contracting out of the Security of Payment Act. The court held that the settlement agreement was a valid and binding contract between the parties. The court dismissed Valeo Construction's application for judicial review.

The court made no orders as Valeo Construction's application for judicial review was dismissed. The court held that the adjudication determination was valid and that the settlement agreement was a genuine resolution of the matters in dispute. The court also held that the settlement agreement did not amount to contracting out of the Security of Payment Act.

Orders