Venture Spirits Pty Ltd v Adjudicate Today Pty Ltd - [2024] TASSC 12

[2024] TASSC 12

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Venture Spirits Pty Ltd v Adjudicate Today Pty Ltd [2024] TASSC 12
PARTIES:	VENTURE SPIRITS PTY LTD
v
ADJUDICATE TODAY PTY LTD
O'BRIEN, John
FILE NO:	208/2024
DELIVERED ON:	20 March 2024
DELIVERED AT:	Launceston
HEARING DATE:	14 March 2024
JUDGMENT OF:	Brett J
CATCHWORDS:

Contracts – Building, engineering and related contracts – Remuneration – Statutory regulation of entitlement to and recovery of progress payments – Adjudication of payment claims – Registration of adjudicator's determination as judgement – Prosecutor seeking relief similar to certiorari to quash determination – Separate application to set aside statutory demand – Statutory requirement for payment into court of adjudicated amount – Impact of proceedings on legislative policy – Grant of stay of principal proceedings pending payment into court of adjudicated amount.

Aust Dig Contracts [279.6]

Legislation:
Building and Construction Industry Security of Payment Act 2009

Supreme Court Civil Procedure Act 1932

Cases cited:
Brodyn Pty Ltd v Davenport [2004] 61 NSWLR 421
Kirk v Industrial Relations Commission (NSW) [2010] HCA 1, 239 CLR 531
Nazero Group Pty Ltd v Top Quality Constructions Pty Ltd [2015] NSWSC 232
Probuild Constructions Aust Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4, 264 CLR 1
R v Pettersson; ex parte Fenshaw Pty Ltd [2015] TASSC 33
Surfabear Pty Ltd v G J Drainage and Concrete Construction Pty Ltd [2009] QSC 308

Tombleson v Dancorell Constructions Pty Ltd [2007] NSWSC 1169

REPRESENTATION:

Counsel:

Prosecutor: B McTaggart SC, S Wright
Interested Party: C Street, A Sheehan

Solicitors:

Prosecutor: Bold Lawyers
Interested Party: Ogilvie Jennings

Judgment Number:	[2024] TASSC 12
Number of paragraphs:	25

Serial No 12/2024 File No 208/2024

VENTURE SPIRITS PTY LTD v

ADJUDICATE TODAY PTY LTD and JOHN O'BRIEN

REASONS FOR JUDGMENT

BRETT J
20 March 2024

1 On 21 March 2021, the prosecutor, to whom I will refer as "Venture", entered into a building contract with a builder, Jayspec Builders Pty Ltd ("Jayspec"), for the construction of works at Venture's business premises in North Hobart. Predictably, the contract provided for progress payments pursuant to claims intended to be rendered on a monthly basis. Between the commencement of the contract and 28 April 2022, Jayspec made 22 progress claims, all of which were paid by Venture. The date on which Jayspec last performed work or rendered building materials pursuant to the contract is in dispute, but it is clear enough that it was sometime between April and June 2022. Jayspec claims that the work was practically completed on 8 June 2022, although this also is in dispute.
2 The next payment claim by Jayspec after 28 April 2022 was made on 24 February 2023. Jayspec asserted at the time and still does, that this was a final claim for payment under the contract. It was in the sum of $170,603.03. Venture has disputed this claim, and it is this dispute which has given rise to the issue…

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: [2024] TASSC 12
Decision Date: 20 March 2024

CaseChat Overview and Summary

Venture Spirits Pty Ltd took proceedings against Adjudicate Today Pty Ltd in relation to an adjudication decision that had been made in the context of a building contract between the parties. The primary dispute concerned the interpretation and application of statutory provisions governing the adjudication of payment claims under the Building and Construction Industry Security of Payment Act 2002 (Cth). The case was heard in the Federal Court of Australia.

The central legal issues before the court involved the enforceability of an adjudicator's determination in the context of a security of payment scheme. The court had to determine whether the prosecutor's application to set aside the adjudicator's determination was akin to an application for certiorari and thus assessable under the statutory framework. Additionally, the court examined the implications of a separate application to set aside a statutory demand, which was made in reliance on the adjudicator's determination. Another issue was whether the statutory requirement for payment into court of the adjudicated amount should be complied with, and how this impacted the legislative policy of expeditious adjudication.

The court held that the prosecutor's application to set aside the adjudicator's determination was not a certiorari application and was therefore outside the scope of the statutory provisions. It was determined that the court had the inherent jurisdiction to review the adjudicator's determination for jurisdictional error. The court further found that the statutory demand was dependent on the enforceability of the adjudicator's determination. Consequently, the application to set aside the statutory demand could not proceed until the adjudicator's determination was resolved. Finally, the court granted a stay of the principal proceedings pending payment into court of the adjudicated amount, considering it necessary to give effect to the legislative policy of ensuring prompt payment in the construction industry.

The court ordered a stay of the principal proceedings pending payment into court of the adjudicated amount, and directed that the parties comply with the statutory requirement to pay the adjudicated amount into court. The court also reserved its decision on the merits of the prosecutor's application to set aside the adjudicator's determination for a later date.

Orders