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Vanguard Developments v Promax

Vanguard Developments v Promax

Case [2018] VSC 386 6 August 2018

Jurisdiction

Judicial Review

Statutory Interpretation

Construction Law

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
TECHNOLOGY, ENGINEERING & CONSTRUCTION LIST

S ECI 2018 00125

VANGUARD DEVELOPMENT GROUP PTY LTD (ACN 167 084 648) AS TRUSTEE FOR THE TAYLOR FAMILY TRUST NO. 2	Plaintiff
v
PROMAX BUILDING DEVELOPMENTS PTY LTD (ACN 114 054 741)	First Defendant
JOHN O’BRIEN	Second Defendant

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JUDGE:	Kennedy J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 July 2018
DATE OF JUDGMENT:	6 August 2018
CASE MAY BE CITED AS:	Vanguard Development Group Pty Ltd v Promax Building Developments Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2018] VSC 386

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BUILDING CONTRACTS – Building and Construction Industry Security of Payment Act 2002 (Vic) – Where ‘final claim’ issued after termination of contract – Whether valid reference date – No reference date existed such that jurisdictional error made – Whether further error committed in failing to assess alleged defects which existed at time of earlier adjudication but only identified subsequently – Further jurisdictional error found.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Robins QC	KCL Law
For the First Defendant	Mr J Twigg QC with Mr A Morrison	Brixton Legal
For the Second Defendant	No appearance	…

HER HONOUR:

This is an application for judicial review seeking an order in the nature of certiorari to quash an adjudication determination made by the second defendant (Adjudicator) on 24 May 2018 (Adjudication Determination) pursuant to s 23 of the Building and Construction Industry Security of Payment Act 2002 (Vic) (Act).

In circumstances where grounds 1 and 2 were abandoned, the further amended originating process essentially raised two groups of grounds for review which will be set out more fully below.

First, that the Adjudicator did not have jurisdiction to make the Adjudication Determination given there was no valid reference date (grounds 3 and 6).

Second, that the Adjudicator erred in failing to consider and assess claims relating to alleged defects (grounds 4 and 5).

In relation to the first issue, the Adjudicator had proceeded on the premise that the plaintiff, Vanguard Development Group Pty Ltd (Vanguard), had validly terminated the contract at common law. This however was challenged by the first defendant, Promax Building Developments Pty Ltd (Promax), who claimed that it had validly terminated the contract. In the result, pursuant to an order made by the Honourable Justice Riordan on 2 July 2018, the hearing was not to include any issue as to whether the first defendant was entitled to terminate under the Contract. However, as will be seen below, the construction I have adopted means it will be unnecessary to resolve the issue of who validly terminated the contract.

The second defendant Adjudicator has indicated that he did not intend to take an active role in the proceeding but would seek to be heard prior to the making of any costs order against him.[1]
[1]See letter from Ms Lorraine Djuricin, General Manager of Adjudicate Today Pty Ltd dated 15…

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 Vanguard Developments v Promax

Details

AGLC: Vanguard Developments v Promax [2018] VSC 386
Case: [2018] VSC 386
Decision Date: 6 August 2018

CaseChat Overview and Summary

Vanguard Developments engaged Promax to construct a residential development. Following a dispute over payment, Promax terminated the contract and issued a payment schedule claiming Vanguard was in breach of contract. Vanguard issued a final claim under the Building and Construction Industry Security of Payment Act 2002 (Vic) ("the Act") after the contract's termination. Promax objected to the claim on the basis that the reference date was invalid as there was no such date due to the contract's termination. Vanguard argued that the termination did not affect the reference date and that the tribunal should have assessed the alleged defects which existed at the time of the earlier adjudication but were only identified later. The court had to determine whether the tribunal erred in finding that no reference date existed and, if so, whether the tribunal further erred in not assessing the alleged defects.

The court found that the tribunal erred in concluding that no reference date existed. The termination of the contract did not nullify the reference date under the Act. Consequently, the tribunal lacked jurisdiction to dismiss the claim. Additionally, the tribunal failed to consider the alleged defects that existed at the time of the earlier adjudication but were identified later. This omission constituted another jurisdictional error. The tribunal's failure to address these issues meant that the tribunal did not properly exercise its jurisdiction.

The court quashed the decision of the tribunal and remitted the matter for reconsideration in light of the findings. The tribunal was instructed to determine the validity of the reference date and to assess the alleged defects that existed at the time of the earlier adjudication but were identified later.

Orders