Venture Spirits Pty Ltd v Adjudicate Today Pty Ltd and O'Brien (No 2)
[2024] TASSC 76
•10 December 2024
[2024] TASSC 76
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Venture Spirits Pty Ltd v Adjudicate Today Pty Ltd and O'Brien (No 2) [2024] TASSC 76 |
| PARTIES: | VENTURE SPIRITS PTY LTD |
| v | |
| ADJUDICATE TODAY PTY LTD and O'BRIEN, John | |
| FILE NO: | S/2024/208 |
| DELIVERED ON: | 10 December 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 6 May 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 – Contract expressly provided for determination of dates for progress payment claims – Existence of valid reference date gives adjudicator jurisdiction – Conduct of parties demonstrated mutual acceptance that works were practically completed – Adjudicator’s selection of irrelevant and incorrect reference date resulted in jurisdictional error – Two payment claims made in respect of same entitlement resulted in breach of statutory provision – No jurisdiction for adjudication of relevant payment claim.
Aust Dig Contracts [279.6]
Legislation:
Building and Construction Industry Security of Payment Act 2009, s 12, s 17(2)(d), s 17(4), s 17(5), s 18, s 21,
s 23, s 23(4), s 21(5), s 26,
Acts Interpretation Act 1931, s10A
Cases:
Argyle Building Sevices Pty Ltd v Dalanex Pty Ltd (No 2) [2022] VSC 452
Brolton Group Pty Ltd v Hanson Construction Materials Pty Ltd [2020] NSWCA 63
Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215
Citi-Con v Punton's Shoes [2020] VCC 804
Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69
Facade Designs International Pty Ltd v Yuanda Vic Pty Ltd [2020] VSC 570
Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339
J Hutchinson Pty Ltd v Cada Formwork Pty Ltd & Ors [2014] QSC 63
John Beever (Aust) Pty Ltd v Paper Australia Pty Ltd [2019] VSC 126
Probuild Constructions Aust Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4, 264 CLR 1
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185
Seabay Properties Pty Ltd v Galvin Construction Pty Ltd & Anor [2011] VSC 183
Shape Australia v The Nuance Group [2018] VSC 808
Southern Han Breakfast Pty Ltd (In liquidation) v Lewence [2016] HCA 52
The Trustee for Allway Unit Trust Trading as Westside Mechanical Contracting Pty Ltd v R&D Airconditioning
Pty Ltd [2018] SASC 46
The Trustees of the Roman Catholic Church for the Diocese of Lismore v T F Woollam and Son [2012] NSWSC
1559
TWT Property Group Pty Ltd v Cenric Group Pty Ltd [2020] NSWSC 72
Venture Spirits Pty Ltd v Adjudicate Today Pty Ltd [2024] TASSC 12
REPRESENTATION:
Counsel:
Applicant: B McTaggart SC Interested Party: C Street
Solicitors:
Applicant: Bold Lawyers Interested Party: Ogilvie Jennings
| Judgment Number: | [2024] TASSC 76 |
| Number of paragraphs: | 103 |
Serial No 76/2024 File No 208/2024
VENUTRE SPIRITS PTY LTD v ADJUDICATE TODAY PTY LTD and JOHN
O'BRIEN (No 2)
| REASONS FOR JUDGMENT | BRETT J 10 December 2024 |
1 The applicant seeks relief in the nature of certiorari quashing a determination of an adjudicator, the second respondent, which was made under the Building and Construction Industry Security of Payment Act 2009 ("the Act"). It also seeks an order setting aside a statutory demand which has, as its basis, the sum which has become payable by the applicant pursuant to that determination. In a decision handed down on 20 March 2024, concerning an interlocutory matter, Venture Spirits Pty Ltd v Adjudicate Today Pty Ltd [2024] TASSC 12, I briefly described the factual background and legislative context of this matter. It is convenient to repeat those passages now:
"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.
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 which is the subject of these proceedings.
That issue arises under the Building and Construction Industry Security of Payment Act 2009 ("the Act"). This legislation sets up a system which mandates payment of progress claims under a building contract in accordance with strict and tight timeframes. The progress payments, although mandated, are made 'on account' and without prejudice to the rights of the parties arising under the contract, which remain the subject of appropriate determination and adjustment at the conclusion of the contract. Section 10 specifically provides that nothing done under relevant provisions of the Act 'affects any civil proceedings' arising in respect of the contract.
A key component of the legislative scheme is provision for dispute resolution in respect of a progress claim. The Act provides for referral of such disputes to an adjudicator. The determination of the adjudicator is final and binding on the parties, at least on the interlocutory basis contemplated by the Act. The respondent, the title used by the Act for the person upon whom the claim is served, is required to pay the adjudicated amount. Section 27 provides that the adjudication certificate may be filed "as a judgment for a debt in a court of competent jurisdiction". This provision is intended to facilitate prompt and efficient enforcement of the payment of the adjudicated amount. Both the parties and the adjudicator are held to extremely tight and strict time limits with respect to the adjudication process. This is consistent with the overall intention of the legislation, which has been described as a 'pay now, argue later' scheme. Per Porter J in R v Pettersson; ex parte Fenshaw Pty Ltd [2015] TASSC 33.
As will become apparent, the legislative scheme assumes importance in the resolution of this case. In Probuild Constructions Aust Pty Ltd v Shade Systems Pty Ltd [2018]
2 No 76/2024
HCA 4, 264 CLR 1, the High Court described the purpose and operation of the scheme implemented by "closely equivalent" legislation in New South Wales in these terms:
'First, it is to be recalled that the Security of Payment Act was enacted 'to reform payment behaviour in the construction industry' by seeking to ensure that a person who undertakes to carry out construction work under a construction contract is entitled to receive, and is able to recover, progress payments promptly in relation to the carrying out of that work. In particular, it was designed to 'stamp out the practice of developers and contractors delaying payment to subcontractors and suppliers'. And it achieves that objective by setting up a scheme, including a "unique form of adjudication of disputes over the amount due for payment", which is, as Basten JA observed in the Court of Appeal, "coherent, expeditious and self-contained". The intended result is that "each party knows precisely where they stand at any point of time".
Second, it is important to appreciate the subject matter of the Security of Payment Act. The Security of Payment Act is not concerned with finally and conclusively determining the entitlements of parties to a construction contract. Section 8 confers an entitlement to a progress payment, which may be the final payment, a single or one-off payment or what is described as a 'milestone payment'. Part 3 of the Security of Payment Act creates a distinct procedure for enforcing that statutory entitlement, which includes the making of a payment claim, the provision of a payment schedule in response and the determination of a payment claim by an adjudicator (at the option of the claimant).' (Footnotes omitted.)
The dispute over the February 2023 claim was, in accordance with relevant provisions of the Act, referred to an adjudication firm (the first respondent), who appointed the second respondent as the adjudicator. On 19 April 2023, the second respondent determined that the claim was made under the Act and that Jayspec was entitled to payment of the full amount. An adjudication certificate giving effect to the determination was issued on 8 September 2023. The adjudicated amount included interest, fees and expenses, and was in the aggregate sum of $190,617.29. The certificate was registered as a judgment in this Court on 5 October 2023.
The judgment debt remains unpaid. There is no evidence that Jayspec has made any attempt to enforce or execute on the judgment pursuant to the procedures available to it in this Court. However, on 1 November 2023, Jayspec issued a creditors statutory demand pursuant to the Corporations Act 2001. The demand was served on Venture shortly after.
On 25 January 2024, Venture filed an originating application seeking relief similar to certiorari quashing the adjudicator's determination. At the same time, it filed a separate originating application seeking to set aside the statutory demand. The respondents have both filed a notice of submission in respect of the application seeking prerogative relief. Jayspec has joined as a party, and is the effective contradictor in respect of this application.
When the application for prerogative relief was filed, it did not, as it should have, specify the grounds upon which it sought relief. However, those grounds were provided at a directions hearing on 9 February 2024, and I issued a general order on that day. It is clear from those grounds that the claim for prerogative relief is based on asserted jurisdictional error on the part of the adjudicator."
2 The grounds upon which relief is sought are as follows:
a) The adjudication and adjudication certificate are void because the adjudicator and
the nominating authority made jurisdictional error by:
(i) Finding that there was a reference date entitling Jayspec Builders Pty Ltd
to the progress payment claimed; and3 No 76/2024
Building and
(ii) Determining that there was no breach of s 17(4) of the than one payment claim in respect of each reference date under the building contract.
3 There is no provision in the Act for an appeal from the decision of an adjudicator. However, in Probuild Constructions Aust Pty Ltd v Shade Systems Pty Ltd, the High Court made clear that this Court has power to review the adjudicator's determination, and grant prerogative relief, in respect of jurisdictional error. The jurisdictional error asserted by ground (i) in this case relies on the proposition that the adjudicator's jurisdiction arises solely from the provisions of the Act. Such jurisdiction depends upon a valid payment claim, the validity of which depends on the existence of a valid and available reference date in respect of the claim. The ground asserts that such a reference date was not available for the claim dated 24 February 2023, and even if it was, the adjudicator selected a date which was not a valid or available date. Hence, it is submitted that the adjudicator fell into jurisdictional error. Further, it is asserted in ground (ii) that even if there was a valid reference date in respect of the contested payment claim, Jayspec has served two claims in respect of that date, and this is prohibited by s 17(4) of the Act. This also, it is argued, deprives the adjudicator of jurisdiction.
4 Jayspec agrees that the reference date determined by the adjudicator is incorrect. However, it argues that this error was made within his jurisdiction, and hence does not invalidate the adjudication. Further and in any event, it says that there are valid and available dates which support the payment claim, and this satisfies the requirements of the legislation. In respect of ground (ii), it says that the availability of these dates means that the claim is not in respect of a date already used, and hence there has been no breach of s 17(4). Further, it challenges the validity of the earlier claim relevant to this argument, and in any event says that Venture is estopped from asserting its validity. Finally, it says that even if there has been jurisdictional error, the Court should exercise its discretion by declining to grant prerogative relief.
5 In order to assess these arguments, it is necessary to first briefly consider the legislative scheme concerning the adjudication of payment claims and their enforcement.
Legislative scheme
6 The entitlement of a person carrying out building or construction work under a contract to a progress payment arises by virtue of s 12 of the Act:
"Rights to progress payments
(1) A person –
(a)
who has undertaken to carry out building work or construction work under a building or construction contract; or
(b)
who has undertaken to supply building or construction-related goods and services under a building or construction contract –
is entitled, on and from each reference date, to a progress payment.
(2) The amount of the progress payment is to be the amount calculated in accordance
with the terms of the contract."
7 The terms "progress payment" and "reference date" are both defined by s 4 of the Act. Those
definitions are:
"progress payment means a progress payment to which a person is entitled under section 12
and includes –4 No 76/2024
(a) the final payment for building work or construction work carried out, or for building or construction-related goods and services supplied, under a building or construction contract; and
(b) a single or one-off payment for carrying out building work or construction work, or supplying building or construction-related goods and services, under a building or construction contract; and
(c) a payment that is based on an event or date;
reference date, in relation to a building or construction contract, means –
(a) a date determined by, or in accordance with, the terms of the contract as the date on
which a claim for a progress payment may be made in relation to –
(i) work carried out, or undertaken to be carried out, under the contract; or
(ii) building or construction-related goods and services supplied, or undertaken
to be supplied, under the contract; or
(b) if the contract does not expressly provide for such a date, the last day of each month
in which –
(i) building work or construction work is carried out under the contract; or
(ii) building or construction-related goods and services are supplied under the
contract"
8 Section 17 provides that a person who is, or claims to be entitled to a progress payment under s 12, may serve a payment claim on the person liable to make the payment. The section sets out requirements for the payment claim. It also provides that a claimant must not serve more than one payment claim in respect of each reference date, although this does not prevent the claimant from including in a payment claim an amount that has been the subject of a previous claim; s 17(4) and (5).
9 By virtue of s 18, the person served with the payment claim may provide the claimant with a payment schedule in respect of the claim. The purpose of the schedule is to indicate the amount of the payment, if any, that the respondent proposes to make. If this amount is less than the claimed amount, the schedule must specify why the amount is less.
10 If the respondent does not serve the claimant with a payment schedule within a specified time, then it will become liable to pay the claimed amount. Further, if the respondent does not pay the claimant the amount payable in accordance with the payment schedule, then the claimant may recover this money as a debt in a court of competent jurisdiction.
11 Part 5 of the Act provides for the adjudication of disputes arising on the face of the payment claim and payment schedule. There are detailed provisions concerning the appointment of the adjudicator and the conduct of the adjudication. The process commences with an application by the claimant, pursuant to s 21, for an adjudication in circumstances which include the provision by the respondent of a payment schedule which specifies an amount which is less than the claimed amount. Section 21(5) provides that the adjudication application "may contain any submissions relating to the application that the applicant thinks fit". By s 23, the respondent may lodge with the adjudicator a response to the claimant's adjudication application, but must not include in the response reasons for withholding payment unless those reasons have already been included in the payment schedule provided to the claimant.
12 Section 25 deals with the determination of the adjudication application. Some relevant provisions are as follows:
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"(1) An adjudicator is to determine an adjudication application –
(a) by determining whether or not all or part of a progress payment is to be paid by the respondent to the claimant; and (b) if the adjudicator determines that all or part of a progress payment is to be paid by the respondent to the claimant, by determining –
(i) the amount of the payment; and (ii) the date on which the payment became or becomes payable; and (iii) the rate of interest payable on the amount.
(2) In determining an adjudication application, an adjudicator is to consider only the
following matters:(a) the provisions of this Act;
(b) the provisions of the building or construction contract to which the application relates; (c) the payment claim to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the claimant in support of the claim; (d) the payment schedule, if any, to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the respondent in support of the schedule; (e) the results of any inspection carried out by the adjudicator of any matter to which the claim relates. (3) An adjudicator may determine an adjudication application even if –
(a) a party fails to make a submission or comment within the period specified by the adjudicator; or (b) a party fails to attend a conference called by the adjudicator."
13 Section 26 provides that a respondent must pay an adjudicated amount to the claimant within specified time limits. If payment is not made, then an adjudication certificate can issue, and be filed as a judgment for a debt in a court of competent jurisdiction.
14 It is clear from the legislative scheme described above that in circumstances in which a respondent has disputed the whole or part of a payment claim, the claimant's entitlement to enforce that payment claim as a progress claim under the legislation is dependent upon a successful adjudication. In other words, although the claimant is not prevented by the legislation from taking civil proceedings in the normal way to enforce its contractual rights, if it wishes to recover a progress payment under the Act, then it must make the adjudication application and, of course, have the adjudicator's finding in its favour. The use of adjudication as a summary process to determine that entitlement is consistent with the interlocutory "pay now argue later" nature of the legislative scheme.
The need for a valid reference date
15 In Southern Han Breakfast Pty Ltd (In liquidation) v Lewence [2016] HCA 52, the High Court confirmed that, in respect of relevantly identical New South Wales legislation, the making of a valid payment claim is a precondition to a valid adjudication application and determination, and the existence of a valid reference date is a precondition to the validity of the payment claim. The critical relationship
6 No 76/2024
between the payment claim and the reference date exists because the statutory entitlement to a progress payment in s 12 is "on and from each reference date". Therefore, the existence of an available and valid reference date is an essential precondition to the jurisdiction of the adjudicator to determine the claimant's entitlement to the payment claim.
16 The High Court went on to address the question of how such a reference date is to be determined. It concluded that the resolution of that question will depend upon the application of the statutory definitions. The Court noted the dichotomy between the two subparagraphs of the definition of "reference date". If a date for the payment of the relevant progress payment which is the subject of the payment claim is "fixed by the operation of one or more express provisions" of the contract, then the determination of the reference date will be made in accordance with subpar (a) of the definition. Subpar (b) will only apply "if the contract does not expressly provide for such a date". The Court observed that the entitlements which arise are not limited to those in the nature of instalments "but also to final payments and to single or one-off payments". The Court went on to say that it was "clear that the Act is not concerned only with providing a statutory mechanism for securing payments that are to occur during the currency of an existing construction contract. The statutory contemplation is that a claim for progress payment might be made after the contract had expired".
17 In Southern Han, the High Court determined that on the facts of the case, there was no available reference date. The Court held, applying the dichotomy that exists between subpar (a) and (b) in the definition, that because the contract contained express provision for fixing a date for claiming progress payments, subpar (b) could have no application, and "the requisite reference date was potentially capable of having arisen only in respect of the application of" subpar (a). However, the contract in question had been terminated by one party's acceptance of the other party's repudiation. This meant that the rights arising under the contract which would support the making of a progress claim, and hence the relevant reference date, did not survive the termination. The date relied upon to support the payment claim, which was the date applied by the adjudicator for the purpose of the adjudication, was after termination. Accordingly, it was held that there was no relevant and available reference date. The Court determined that the relevant adjudication was therefore beyond jurisdiction and hence invalid.
18 Subsequent cases have clarified other aspects of the relationship between the reference date and a valid payment claim. Although these points are consistent with the reasoning in Southern Han, they did not arise on the facts of that case. In Brolton Group Pty Ltd v Hanson Construction Materials Pty Ltd [2020] NSWCA 63, the New South Wales Court of Appeal endorsed the observations of Doyle J in the South Australian case of The Trustee for Allway Unit Trust Trading as Westside Mechanical Contracting Pty Ltd v R&D Airconditioning Pty Ltd [2018] SASC 46 which I summarise as follows:
• It is not necessary for the reference date to be identified in the payment claim. • However, the applicable reference date "must be ascertained at some point in the process". • The existence of a reference date, in the words of Doyle J "is not merely a temporal precondition to the entitlement to serve a statutory payment claim." His Honour said: "In short, the reference date is determined by reference to the right to make a progress claim that underpins it; and having been determined in this way, the reference date is not then set free from the right that underpins it. To the contrary, the underlying right to make a progress claim continues to inform the operation of the statutory regime for the making, and enforcement (including through the adjudication process), of a payment claim in respect of a particular reference date."
•
Because of the substantive relationship between the reference date and the right to claim a progress payment, the adjudicator's determination must be in respect of the same reference date.
7 No 76/2024
19 It is clear from these cases that the existence of an available reference date which supports the payment claim is a jurisdictional fact. Hence, where the existence or identification of the date is in dispute, the Court must determine that question for itself. Shape Australia v The Nuance Group [2018] VSC 808 at [40]; Argyle Building Sevices Pty Ltd v Dalanex Pty Ltd (No 2) [2022] VSC 452 at [49]. The Court may give weight where appropriate to the adjudicator's findings on this question, particularly where the "decisions are supported by disclosed processes of reasoning", but ultimately must decide this question, and hence the legality of the adjudication, for itself: Shape Australia at [58]. I will return to this aspect of the adjudicator's jurisdiction, and these cases, in more detail shortly.
The facts of this case
20 Both parties read into evidence affidavits from the respective persons in control of the relevant entity. There are two affidavits from Robert Kingston, a director of Venture, and one affidavit of Jarod Vander Laan, a director of Jayspec. Each affidavit attached a great deal of historical documentation. The authenticity of this documentation is not subject to challenge by either party. Apart from some brief cross-examination of Mr Kingston on a couple of discrete points, there was no other oral evidence. It is immediately apparent than some factual issues arise from the affidavits. It is not possible for me to determine some of these issues given the absence of cross-examination and appropriate challenge. Having said this, it will, in order to resolve this case, be sufficient for me to rely on matters that can be established as common ground between the parties and/or appear on the face of and/or can be inferred from relevant documentation.
21 The existence and terms of the written contract are common ground. The contract provides for a fixed price of $578,680.55. However, it does not set out or attach detailed particulars of the works. The contract simply describes the works as "Demolition work, renovation, Fitout As per quotation letter". The quotation letter is not attached to the contract, but is included in the material attached to the affidavits. It refers to plans prepared by a company known as "Solutionswon Group Pty Ltd", which is described by Mr Vander Laan as the project manager, and in the contract, as the firm responsible for contract documentation, including architectural and engineering drawings. Although Mr Kingston agrees that Mr Marino from Solutionswon provided services in respect of the development and building application, which presumably included the relevant drawings, together with some consultation services on a casual basis during the works, he otherwise disputes the extent of the involvement of this company in the works. The quotation provides for some "prime cost items" and "provisional sums", and otherwise lists items of work which are included in the fixed price. It is apparent from the material that there is some dispute concerning when the quotation letter was received by Venture, and its effect. Mr Kingston claims that he was assured by Mr Vander Laan during a meeting at the time or before the contract was signed, that the contract price was a fixed and absolute ceiling. However, it is also apparent that the contract contemplated provision for adjustment of the price. For example, the contract provides for variations, and their existence seems to be accepted by both parties, although there is dispute about the extent and legality of some of them. Further, the contract provides a special condition that work "done by the proprietors will be deducted off the overall price". It seems to be common ground that at least some work was performed by the proprietors and, accordingly, a contract adjustment would be required for this. Finally, the quotation letter clearly provides for flexibility by the allowance of provisional sums, the specification of what is included within the scope of works, and the express provision for exclusions from the scope of works.
22 Clause 23 of the contract provides for progress payments "during the execution of the works". Clause 23(b) provides that these claims shall be submitted "at intervals of not less than four weeks" and that "the amount of each such claim shall not be less than the amount specified in schedule 1". Schedule 1 specified the minimum amount of progress claims at $10,000. Between 30 April 2021 and 21 April 2022, Jayspec submitted twelve such claims, in an aggregate sum of $567,020.81. Mr Kingston's first affidavit listed eleven such claims, but twelve were attached to his affidavit, and his second affidavit
8 No 76/2024
confirms payment of the aggregate of the twelve in the said sum. The majority, but not all, of these
claims were submitted at intervals of four weeks or greater.23 There are some disputes between the parties concerning the events surrounding the end of the work. However, the following timeline can be derived from uncontested evidence, including the documents. These events affect the jurisdictional questions which arise in this case. To the extent that the Court must make its own decision about jurisdictional facts, I make the following findings.
24 It is clear enough that by the end of March 2022, the majority of work had been completed and the parties were discussing both the paperwork necessary to finalise the works, and final payment. The primary piece of paperwork was an occupancy certificate by the building surveyor. A precondition of the issue of this certificate, apart from the building surveyor's inspection of the site, was submission by Jayspec of a document known as a Form 71A, which is a standard certificate of the builder confirming that the building work is complete and complies with relevant legislation and codes. Having regard to an email exchange between Mr Kingston and Mr Vander Laan on 17 March 2022, it is obvious that there was a discussion between them about these matters on that day. Although there was no final agreement about payment or paperwork, there was consensus as to the need to progress each issue. Significantly, in Mr Vander Laan's reply email on that day, he confirms agreement to book the building surveyor "for a final inspection and sign off", and notes that he has contacted the surveyor's office for this purpose. There is further confirmation that he will attend to the final paperwork, and supply it to the surveyor for "occupancy and final" once the "final invoice has been paid and or terms have been agreed on".
25 It is common ground that there were further discussions about these issues on 22 March 2022. According to Mr Kingston, an agreement was reached that the final price would be $552,000 plus a builder's margin of 15%. The sum of $552,000 was calculated on the basis of $543,635.75 already billed plus some further charges for glass supplies and administrative work. I note that the last of the 12 tax invoices already discussed is dated 21 April, and makes a charge for glass supplies and insurance. I should note at this point that I cannot reconcile the "already billed" sum with the actual payment claims made to that date. On my calculation, leaving aside the last claim dated 21 April, the aggregate is $556,243.25. However, this discrepancy will not affect my determination of this case. Mr Vander Laan, in his affidavit, agrees that this discussion took place, but suggests that an agreement was not reached. Rather, Mr Kingston invited him to make a proposal. However, as I will discuss shortly, subsequent communications by Mr Vander Laan suggest that he, in fact, considered that they had reached at least partial agreement about the calculation of the final payment.
26 On 30 March 2022, the building surveyor, Mr Tyers, conducted his final inspection. On 2 April, he provided the parties with a list of items that required attention before he could sign the occupancy certificate. There are 18 items, 16 of which involved provision of various certificates, reports and other confirmation concerning aspects of the works. The other two items were concerned with installation of signage and fire extinguishers. There is no requirement to undertake any further substantive works.
27 On 28 April 2022, Mr Vander Laan forwarded two further invoices to Mr Kingston undercover of an email. The email described the enclosed documents as "final invoices". It further states that "the final invoice is as we discussed 15% on top of final cost figure". It asserts that the final cost figure is $579,438.34 including GST. The final sentence says:
"Stopped in at the job site today and handed Jayspecs set of keys to Dave. It's looking
really good in there".
28 In his affidavit, Mr Kingston explains that Dave is David Chatfield, a director of Venture.
29 The invoices attached to that email are numbered 0299 and 0300. Both carry an endorsement
as follows:
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"This is a payment claim made under the Building Construction Industry Security of
Payment Act 2009."
30 Invoice 0299 claims a sum of $25,025 "for outstanding carpentry hours not charged to job to date". Mr Kingston claims that this was a complete surprise to him and there had been no agreement to pay this amount.
31 Invoice 0300 bears an endorsement consistent with the contents of the covering email. It claims
$86,915.75. The endorsement is as follows: "Final invoice; as discussed over the Phone 15% on top of final cost of
Project.
Final cost was $579,438.34 including GST."
32 Having regard to the documents referred to, it is clear that by this point the parties had reached agreement that the final payment would be calculated on the basis of cost plus a 15% builder's margin. However, they were in dispute concerning the amount of the final cost of the project.
33 On 11 May 2022, Venture delivered a payment schedule in respect of each invoice. In each schedule, Venture specified that it intended to make a nil payment. The reasons specified for this included a claim that each payment claim was invalid. The reasons for invalidity were that the claims plus the payment claim 0296 which was dated 21 April 2022, consisted of more than one payment claim in respect of a single reference date. The schedules also asserted other technical issues concerning the drafting of each payment claim. Finally, it was asserted that each claim, if valid, was inconsistent with the terms of the contract, including that the claim for a marginal percentage was not authorised by the contract.
34 It is a matter of record that Jayspec did not make an adjudication application in respect of either payment claim. Mr Kingston asserts in his affidavits that these payment claims have never been withdrawn by Jayspec. There does not seem to be any contrary evidence.
35 On the same day, 11 May, Mr Vander Laan forwarded an email to Mr Kingston, which discussed progress with respect to various certificates and other paperwork necessary to comply with the building surveyor's requirements. The email also states:
"I'd like to draw your attention to Schedule 1 Clause 27 and Clause 30 section (d) in relation to
the final documentation.The final invoices have already been compromised to the contract and payment needs to be complete under our terms agreed on under the contract
Schedule 1 Clause 21(d), 23(b), 26(b), 29 and 30."
36 The contractual clauses referred to in the email include those dealing with payment on practical completion, retention monies held during the defects liability period, which commences on practical completion, and final payment on the expiration of the defects liability period.
37 On 12 May 2022, Mr Kingston forwarded an email to Mr Vander Lann discussing provision of the final paperwork. The email states that it is an offence for the builder to withhold final paperwork, and threatens to report Jayspec to relevant authorities for doing so.
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38 It is clear from these emails that the dispute concerning the final payment, in particular the amount of the cost basis of the calculation, remained unresolved. The dispute concerning the paperwork continued until 8 June 2022. This paperwork included the Form 71A certificate. Mr Kingston claims that Mr Vander Laan had the paperwork, including the Form 71A, completed well before the end of May but was withholding same from the building surveyor to delay issue of the occupancy certificate as a tactic to force Venture to agree to pay the higher amount. Mr Vander Laan denies this, and asserts that the final inspection was conducted on 6 June, and that the Form 71A, could not be completed until then. Mr Kingston agrees there was a meeting on that day but disputes that it was a final inspection. He claims that he had raised defects with Mr Vander Lann and that the purpose of the meeting was to discuss the alleged defects.
39 In any event, Mr Vander Laan forwarded the final paperwork to the building surveyor on 8 June and they issued the occupancy certificate on the same day. The paperwork provided included the Form 71A. A copy of that document attached to Mr Kingston's affidavit is signed by Mr Vander Laan, and is dated 20 April 2022. The date of this document supports Mr Kingston’s allegation concerning the timing of the completion of the Form 71A.
40 On 17 July 2022, undercover of an email of that date, Mr Kingston forwarded to Mr Vander Laan a report from a building consultant, R J Oakes and Associates, which purported to set out a list of defects. As far as I can tell from the evidence, it is common ground that no further work was thereafter performed by Jayspec at the premises whether in rectification of the alleged defects, or otherwise. There is no evidence as to what occurred in respect of the defects and why they were not attended to by Jayspec. According to Mr Kingston, after the list of defects had been provided to Jayspec, the dispute reached the point where each party engaged legal representation. However, despite without prejudice negotiation, they were not able to reach agreement.
41 On 24 February 2023, Jayspec forwarded invoice 0359 to Venture. The invoice contained the usual endorsement that it was a payment claim made under the Act. It claimed a final payment of $170,603.03. The methodology set out in the payment claim with respect to the calculation of this payment is different to that set out in invoice 0300. In particular, it asserts that the balance of the contract sum due is $133,307.74 and claims further sums and allows credit items in order to arrive at the final figure of $170,603.03. It says nothing about a builder's margin.
42 This invoice was forwarded undercover of a letter from Jayspec to Venture. The letter described the invoice as a "final claim" but made it clear that the claim was concerned with the payment due after practical completion. The opening paragraphs of the letter are as follows:
"The works reached practical completion by the 8 June 2022 – certificate of occupancy and final inspection by building surveyor (copy attached again). In fact, you were trading on 10 June 2022 (note cl 25 contract)
The balance price became due on practical completion (note cl 26 contract) but you still have not paid."
43 On 9 March 2023, Venture served on Jayspec a payment schedule in respect of the said payment claim. The payment schedule indicated an intention to pay nil in respect of it. The reasons relied upon include the following:
•
The document is not a valid payment claim because it does not identify building or construction work in sufficient detail to enable Venture to assess the claim. Further, in contravention of cl 23(c) of the contract, it fails to include details concerning the valuation of work executed, the amount which Venture is entitled to withhold by way of retention monies and the total amount previously claimed by Jayspec under this clause. Finally, it asserted that the claim has been made by the wrong entity.
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• To the extent that the payment claim is valid, Venture asserted that the claim incorrectly calculated and did not conform with the terms of the contract. This included an allegation that the claim taken together with invoices already paid meant that Jayspec was claiming an aggregate price in excess of the fixed contract sum. 44 On 21 March 2023, Jayspec made an application for adjudication pursuant to s 21 of the Act. Both parties provided written submissions to the adjudicator. On 19 April 2023, the adjudicator made his determination. The determination in essence upheld the payment claim in the amount claimed of $170,603.03. It is this adjudication and the consequent determination that Venture seeks to quash.
Ground (i) – the payment claim is not supported by an available reference date
45 Venture argues that although the adjudicator turned his mind to the question of reference dates and determined that there was a reference date to support the relevant payment claim, the date so found was not a valid or available reference date. Hence, for the reasons explained in Southern Han, the adjudicator fell into jurisdictional error.
46 Jayspec acknowledges that the date determined by the adjudicator is incorrect. However, it claims that there are available reference dates which support the payment claim, that the incorrect finding of the adjudicator about the date is immaterial, and accordingly that the error does not affect jurisdiction.
47 The adjudicator's determination in respect of a reference date, is contained in the following
passages:
"18
The Claimant says that the reference date for the Payment Claim is 8 June 2022, the date 'when all moneys become due under the Contract'. Alternatively, the Claimant says 'Additionally, the defects liability Period (the DLP) expired on the 7th September 2022…and no defects have been 'duly raised'. Under cl. 30(b) and (c) [the Claimant] is entitled to all moneys'.
19
Section 12(1) of the Act provides that a claimant is entitled to make a progress claim 'on and from each reference date'. Reference Date is defined in section 4 of the Act as a date in the Contract 'on which a claim for a progress payment may be made' for construction work or the provision of goods and services or, where the Contract makes no provision, 'the last day of each month' in which construction work is carried out or good and services provided.
20
Section 17(6) of the Act provides that a progress claim may be made within the latter of the period determined by the Contract or 'the period 12 months after' the construction work or the provision of goods and services was performed. The Act does not distinguish between a progress claim and a final claim.
21
The Respondent made no comment in relation to the reference date in the Payment Schedule or the AR.
22
I can find no provision in the Contract dealing with the issue of reference dates. Clause 23 provides only that the Claimant 'shall submit to the Respondent at intervals of not less than fours weeks a claim for progress payments'. In my view, pursuant to the Act, a reference date 'on and from' which a claim may be made arises, 'the last day of each month' in which construction work is carried out on goods and services provided, unless the claim is made outside 'the period 12 months after' the construction work or the provision of goods and services was performed.
23
It appears to be common ground that the Works were completed on 8 June 2022, within 12 months of the service of the Payment Claim. The Works for which a progress claim completed on 8 June 2022 arose on 30 June 2022 and every last day of each month thereafter within 12 months after completion of
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the Works. On that basis, the Reference Date for the Payment Claim is 31
January 2023 (the Reference Date)."
48 As already noted, both parties accept that the determination of a reference date of 31 January 2023 is incorrect. Jayspec agrees with the adjudicator's reasoning that a reference date arose on 30 June 2022 because of work performed during that month, but acknowledges that there is simply no basis for the adjudicator's view that a reference date arose on "every last day of each month thereafter within 12 months after completion of the works". Both parties accept that the adjudicator's reasoning about this is inexplicable and wrong.
49 Venture says that on the reasoning discussed in Allway and Brolton, the fact that the adjudicator has conducted the adjudication with respect to an incorrect reference date is sufficient of itself to establish jurisdictional error. I will return to this question shortly. Before doing so, however, it is appropriate for the Court to determine whether there is in fact a valid reference date in respect of this payment claim, and if so, the identification of that date. Because the existence of a valid reference date supporting the payment claim is a precondition to the jurisdiction of the adjudicator, and the existence of that date is in dispute, the Court must determine for itself whether such a date exists. See Shape Australia v The Nuance Group; Argyle Building Sevices Pty Ltd v Dalanex Pty Ltd (No 2) discussed above.
50 The first question which arises in that determination is the proper application of the statutory definition of "reference date" in the circumstances of this case. The adjudicator found that there was no provision in the contract dealing with the issue of reference dates, and hence defaulted to subpar (b). It seems that on this basis, he determined that a claim may be made on and from the last day of each month in which relevant work is carried out or goods and services provided. Jayspec submits that this approach is correct, and hence, if it is established that relevant work was carried out in June 2022, which the adjudicator found there was, the relevant reference date in respect of this claim is 30 June 2022. Jayspec submits that to that extent, the adjudicator was correct, and only fell into error by extension of the reference date to the last day of each month thereafter.
51 However, I am satisfied that the adjudicator's approach to this question and Jayspec's submissions are incorrect. The application of the definition of "reference date" does not depend on whether there is a provision in the contract "dealing with the issue of reference dates". As the High Court held in Southern Han, if subpar (a) of the definition is applicable, then subpar (b) will not apply and is essentially irrelevant. The application of subpar (a) depends on whether the date on which a claim for a progress payment may be made is determined by or in accordance with the terms of the contract. If so, then subpar (b) does not apply, and the existence of a relevant reference date will depend on whether the claimant's entitlement to claim the progress payment on and from that date has arisen under or in accordance with the terms of the contract. Hence, the application of subpar (a) will depend on whether the contract expressly provides for the determination of the date on which a claim for a progress payment may be made in relation to relevant work, not whether it deals with reference dates.
52 In this case, it is clear that the contract expressly provided for progress payments. Clause 23 deals specifically with progress payments in the sense of payments made progressively during the execution of the works. It specifies a date "on which a claim for a progress payment may be made", in particular:
"23 (b) The Builder shall submit to the Proprietor at intervals of not less than four weeks a claim for progress payments provided that the amount of each such claim shall not be less than the amount specified in Schedule 1. The amount of the progress claim shall be paid by the Proprietor, or by the Lending Authority pursuant to Clause 7(a) to the Builder within the period stated in Schedule 1, or if not stated, within a period of seven (7) days from the date of submission to the Proprietor of the said claim. "
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53 The contract also provides for progress payments which fall under the extended definition in s 4. These payments arise under the contractual provisions dealing with practical completion and final payment upon expiry of the defects liability period. Clause 26 provides that when the works are practically completed, the builder shall be entitled to receive all monies due and payable under the contract and the monies so due shall be paid to the builder within the time specified in Schedule 1, which is 14 days. Practical completion is the subject of cl 25. I shall consider this clause in more detail shortly. Clause 28 provides that a defects liability period shall commence on the date of practical completion. The defects liability period in this contract is 13 weeks. During that period, the proprietor may provide the builder with a list of defects, to which the builder must attend. Clause 30 provides for final payment to the builder after the expiration of the defects liability period. Under that clause, the builder is then entitled to issue a final account to the proprietor containing particulars of the monies (if any) remaining due to the builder, and the builder must pay same within the time specified in Schedule 1 within 14 days.
54 In my view, these provisions expressly provide for the determination of dates on which a claim for a progress payment of the type referred to in the extended definition may be made. The definition of progress payment includes "the final payment" for relevant work and supply of goods and services. This definition clearly contemplates that there will be only one such payment. In my view, the date of the final payment under this contract is that fixed in accordance with cl 30 (b) of the contract, that is the amount payable after the expiry of the defects liability period. The payment to which the builder becomes entitled under cl 26 (a) is not "the final payment" but falls within the definition as a payment "based on an event or date". The relevant event is the works being "practically completed". Hence, cl 26 provides for the determination of the date on which the claim for this progress payment may be made. It follows that in this case, subpar (a) of the statutory definition is applicable to the determination of the reference date arising in respect of each such entitlement, the claim for the payment due on practical completion under cl 26 and the claim for final payment due under cl 30.
55 I am also satisfied that the contractual entitlement upon which the payment claim constituted by invoice 0359 relied, was that arising under cl 26 of the contract, in particular the entitlement to payment upon practical completion. This conclusion is clear when regard is had to the terms of the payment claim and the covering letter. Further, Jayspec's submissions to the adjudicator which accompanied the adjudication application asserted that the "appropriate reference date is the date of practical completion, 8 June 2022", and were otherwise concerned exclusively with the calculation of the payment arising upon practical completion. It follows that the adjudicator incorrectly applied subpar (b) of the definition of reference date when he determined that the "works for which a progress claim completed on 8 June 2022 arose on 30 June 2022". I reject Jayspec's submission to me that I should find that some work was performed in June 2022, in particular administrative tasks concerning preparation and delivery of paperwork relevant to practical completion, and therefore 30 June 2022 did arise as an available reference date. There is nothing in the relevant documentation which supports the proposition that the payment claim related to such work. It was clearly based on Jayspec's assertion that practical completion had occurred on 8 June 2022. Accordingly, applying subpar (a) of the statutory definition, the question which will determine the existence of an available reference date is whether, and if so when, Jayspec became entitled under the terms of the contract, in particular cl 26, to make a claim for payment upon practical completion.
56 In arriving at this conclusion, I have considered that cl 30 of the contract provides for a final payment after the expiry of the defects liability period. On the assumption that payment had been made under cl 26, the final payment under cl 30 would take into account the cost of the rectification of any defects notified in accordance with cl 28, and a reconciliation which takes into account any monies retained under that provision. As already noted, the evidence concerning the notification of defects in accordance with cl 28 is limited. There is evidence that Venture forwarded the letter of RJ Oakes and Associates containing a list of defects to Jayspec on 12 July 2022. In submissions to me, Jayspec's counsel conceded that no work had been done in respect of the asserted defects. There is no other
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evidence concerning this question, or explaining why the work was not undertaken. The adjudicator acknowledged the existence of the said report and the allegation of defective works. He also observed that Venture had not otherwise raised the question of defective works in its payment schedule and concluded on the basis of s 23(4) of the Act that he was not entitled to have regard to this question. All of this supports the conclusion that the parties and the adjudicator were focused on a claim based on practical completion under cl 26, and not on the claim for final payment under cl 30. If the adjudication had been concerned with the latter, it would have been necessary for the submissions and the adjudication to deal with the question of defective works and the return of retention monies. The fact that they did not, suggests that they proceeded on the basis that they were dealing with a claim under cl 26.
Practical completion
57 As is clear from the passage cited above, the adjudicator found that the date of practical completion was 8 June 2022. Jayspec agrees with this finding. However, Venture does not concede that practical completion under the contract has been achieved at all, and if it has, submits that it occurred much earlier than 8 June. Its denial of the occurrence of practical completion is based on the fact that Jayspec did not formally comply with the procedural requirements of cl 25, in particular service of a notice of practical completion. Venture further argues that the adjudicator's finding that the date of practical completion was 8 June 2022, was based on a misapprehension that this fact was "common ground" between the parties. It argues that there was never agreement about this question, notwithstanding that Venture did not dispute, or say anything at all about, an assertion by Jayspec in its submissions to the adjudicator that practical completion had been achieved on that date.
58 The first question which arises is the extent to which the adjudicator's finding concerning the date of practical completion is open to review by this Court. Jayspec asserts that it is not open to this Court to determine the question of practical completion as an objective fact, and that the adjudicator's determination of this question is within jurisdiction and hence not subject to review for the purpose of determining the existence of jurisdictional error. This argument is based on the following passage from the judgment of Basten JA in Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339 at [13]:
"It is a fundamental principle that the engagement of a statutory power may depend either upon the existence of an identified state of affairs, or a state of satisfaction of the decision-maker as to an identified state of affairs. In the first category, the actual state of affairs, being the criterion of engagement of the power, is described as a 'jurisdictional fact', meaning that the lawful exercise of the power may ultimately depend upon a finding of a court exercising judicial review as to whether or not the required state of affairs existed. The second category is sometimes also said to involve a jurisdictional fact, but only in the sense that the relevant fact is an opinion formed by the decision-maker; in that case a reviewing court can only be concerned with the existence and lawful formation of the opinion."
59 Counsel for Jayspec, Mr Street, argues that the issue of whether and if so when, practical completion was reached falls into the second category described by Basten JA, and hence the Court may not review this determination, and the adjudicator's determination of the reference date reliant upon this finding. It is submitted that this is so because a finding as to the question of practical completion will depend on findings as to when work was carried out and services supplied, and these questions are clearly matters intended to be determined by the adjudicator. Mr Street also referred me to a decision of TWT Property Group Pty Ltd v Cenric Group Pty Ltd [2020] NSWSC 72. In that case, Stevenson J concluded that a decision as to whether as a matter of fact, work had been performed within 12 months of service of the payment claim for the purpose of the application of a provision of the legislation, which requires the payment claim to be served within 12 months after the relevant work was last carried out, was "quintessentially one that the legislature left to the adjudicator and to thus be one within Basten
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JA's Category Two". It is argued that this enquiry is of a similar nature to that to be determined in this case.
60 I reject these submissions. It should be noted that neither case was concerned with the existence of a relevant reference date in respect of the jurisdiction of the adjudicator. I reiterate the point made by the High Court in Southern Han to the effect that the existence of a reference date which supports the payment claim is critical to the jurisdiction of the adjudicator. The existence of the reference date depends on the entitlement to the progress payment. The High Court explained that the existence of this entitlement can be distinguished from the amount of the progress payment. The clear implication is that while the latter is within the jurisdiction of the adjudicator, and hence not subject to review, the existence of the entitlement to the progress payment as a precondition of jurisdiction is reviewable.
61 In Shape Australia v The Nuance Group, one of the issues dealt with by Digby J was whether the adjudicator had fallen into jurisdictional error when he determined that there was no reference date in respect of the relevant payment claim and, accordingly, he was without jurisdiction. The adjudicator's decision was based on a factual finding that no claimable work had been carried out since an earlier payment claim. His Honour rejected an argument that the factual determination of the adjudicator was within jurisdiction and not subject to review on an application for certiorari. His Honour said at [39]- [40]:
"'Jurisdictional facts' are a well-established exception to the above rule. This is because the existence (or non-existence) of a jurisdictional fact may determine the legality of the exercise of the power in question. The point was explained by Gaudron J in Corporation of the City of Enfield v Development Assessment Commission (City of Enfield):
'Where the legality of an executive or administrative decision or of action taken pursuant to a decision of that kind depends on the existence of a particular fact or factual situation, it is the function of a court, when its jurisdiction is invoked, to determine, for itself, whether the fact or the factual situation does or does not exist. To do less is to abdicate judicial responsibility.'
Under the SOP Act, there must be a valid payment claim for the Adjudicator to make a determination. An indispensable prerequisite of a valid payment claim is an available reference date to found the payment claim. In this way Parliament has prescribed the existence of this particular factual situation as a condition precedent to the Adjudicator exercising his or her power to make a determination under the SOP Act. On an application for judicial review, where relevantly in issue, the Court must determine for itself whether the reference date exists."
62 And at [57]:
"The Adjudicator's factual and resultant legal conclusions as to his want of jurisdiction were primarily founded on the factual finding that no new work had been performed after February 2018. In assessing the correctness of this factual finding, the Court may consider the evidence before the subject decision maker and the admission and treatment of that evidence, and may, as well as considering what was before the original decision maker, consider other materials adduced by the parties to the immediate proceeding."
63 As already noted, the same conclusion was reached by Delany J in Argyle Building Sevices Pty Ltd v Dalanex Pty Ltd (No 2) at [49]:
"The existence of a reference date is a 'jurisdictional fact', that is, a 'criterion, satisfaction of which enlivens the power of [a] decision-maker'. Where the existence of such a jurisdictional fact is disputed on an application for judicial review, the Court must determine for itself whether a reference date exists."
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64 In this case, the question of whether the works had reached practical completion, and if so when, is fundamental to the entitlement to a progress claim arising pursuant to cl 26. It follows that the existence of such an entitlement will determine the existence of a relevant reference date, which is an essential precondition to the jurisdiction of the adjudicator. Accordingly, the factual question is one for this Court and in making that determination, I must take into account all relevant evidence, including that which was before the adjudicator and the further evidence which has been placed before me.
Whether, and if, so when has practical completion occurred
65 The question of practical completion is dealt with by clause 25 of the contract.
"25
(a) The Works shall be deemed to be Practically Completed when they are reasonably fit for occupation. (b) When in the opinion of the Builder the Works are Practically Completed, the Builder shall give to the Proprietor notice thereof in writing (Notice of Practical Completion). If the Proprietor is not satisfied that the Works are Practically Completed, he shall within fourteen (14) days of receiving Notice of Practical Completion give to the Builder notice of matters or things required to be done for Practical Completion (Notice of Objection). (c) Should the Builder receive a Notice of Objection from the Proprietor, the Builder shall do all things as may be necessary to bring the Works to Practical Completion, and notify the Proprietor, in writing, of the completion thereof (Amended Notice of Practical Completion). Should the Proprietor and the Builder be unable to agree that the Works are Practically Completed, the matter shall be referred to dispute pursuant to Clause 31. Any notice served under this clause will be suspended if the default upon which the notice relies is the subject of the Notice of Dispute pursuant to Clause 31. (d) The Date of Practical Completion shall be the date of giving Notice of Practical Completion, or where a Notice of Objection has been given, the date of the Amended Notice of Practical Completion. (e) At any time during the execution of the Works, the Builder shall at the request of the Proprietor of the Lending Authority (if any) state his estimate of the time that will elapse before the Works will reach the state of Practical Completion. (f) In the event of the Proprietor failing to give any notice in accordance with the provisions of sub-clause (b) above, the Works shall be deemed to be Practically Completed at the date of the notice given by the Builder. (g) Should the Proprietor take possession of the Works or any part thereof either with or without the agreement of the Builder the Date of Practical Completion shall be the date possession is taken unless Practical Completion already has been otherwise established. "
66 The first matter that requires consideration is the failure of Jayspec to give notice of practical completion in accordance with cl 25(b). Venture argues that notice is an essential precondition to practical completion and without notice, the entitlement to payment upon practical completion pursuant to cl 26 does not arise. On the other hand, Jayspec argues that practical completion has taken place as a matter of fact. It submits that the entitlement to payment under cl 26(a) arises "when the works are practically completed". Clause 25(a) provides that the works shall be deemed to be practically completed when they are reasonably fit for occupation. Neither provision contains any reference to the need for notice. It is further submitted that Venture, in actual fact, commenced trading in the premises on 10 June 2022 and this is consistent with Venture having taken possession of the premises by then.
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Clause 25(g) provides that where the proprietor takes possession of the works the date of practical completion shall be the date possession is taken.
67 I accept that the terms of the contract require that notice be given by the builder as a precondition to practical completion. The scheme incorporated in cl 25 and cl 26 clearly contemplates that practical completion will be determined in accordance with the procedures set down in those provisions. These procedures are critical to the intended operation of the contractual scheme, including with respect to the defects liability period. However, in this case, I am satisfied that the parties, by mutual consent, proceeded on the basis that practical completion had been achieved and waived the requirement of notice. The conduct of both parties throughout the relevant events is consistent with their mutual acceptance that the works were practically complete, in the sense of being reasonably fit for occupation, without the need for formal notice. I note again that under cl 25(a), the test for practical completion is that the premises are reasonably fit for occupation. The discussions and correspondence, as early as March, demonstrate that both parties were proceeding on the basis that the works were complete and that only the relevant paperwork and calculation and payment of the payment due upon practical completion remained outstanding. It is clear that when the parties refer to “final payment” in the correspondence at that time, they are in fact referring to the payment due under cl 26(a). The inference that the parties were then proceeding on the basis that practical completion had taken place is consistent with the objective fact that there is no evidence of any significant building work being performed after 28 April. In my view, neither the resolution of the paperwork and certificates nor outstanding agreement about payment is relevant to or affects the existence of practical completion within the meaning of cl 25(a).
68 In respect of Jayspec, it is in my view abundantly clear that by the time that it served invoices 0299 and 0300 on Venture on 28 April 2022, it was satisfied that practical completion had been achieved. I refer in particular to the terms of the email forwarded by Mr Vander Laan enclosing the invoices, including confirmation that he had handed the keys back to a representative of Venture, and his email of 11 May which demanded payment of the invoices and referred to clauses in the contract which included cl 26. The fact that the form 71A certificate is dated 20 April 2022 is also consistent with Mr Vander Laan's acceptance that practical completion had occurred by then.
69 In relation to Venture, Mr Kingston’s evidence that the basis of calculation of the “final payment” had been agreed in March strongly supports the inference that he accepted that practical completion had taken place by then and was prepared to proceed on that basis without the need for formal notice. I refer also to Mr Kingston's evidence that he continued to press Mr Vander Laan for the paperwork necessary to achieve occupancy, and in his second affidavit claims that Mr Vander Laan was unjustifiably delaying provision of this paperwork. On the basis of this material, and leaving aside the argument in respect of notice, Venture's position seems to be that practical completion was reached well before 8 June 2022. I also take into account the fact that Venture obtained and forwarded the report setting out the list of defects to Mr Vander Laan on 12 July 2022. This seems to me to be further confirmation that Mr Kingston considered that, by then at least, practical completion had been achieved, and that the works were now in the defects liability period.
70 Further, I have regard to Venture's conduct of the dispute under the processes prescribed by the Act. In its payment schedule to the payment claim made in invoice 0359, Venture did not take issue with the clear statement by Jayspec in the letter enclosing the payment claim that practical completion had been reached on 8 June 2022. This is significant because Venture did in the payment schedule raise the question of validity of the payment claim but the reasons provided for its claim of invalidity did not refer to the reference date or dispute the fact of practical completion. Further, in its adjudication application, Jayspec asserted that "the appropriate reference date is the date of practical completion – 8 June 2022, being when all monies became due under the contract." The submissions repeated this claim at a later point and also asserted that Venture had been "open for trade on 10 June 2022". In its response,
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Venture said nothing about these assertions nor raised any issue concerning the asserted date of practical completion or the reference date.
71 I accept that the absence of reference by Venture to these questions in its adjudication response did not entitle the adjudicator to conclude that it appeared to be common ground that the works were completed on 8 June 2022. There was clearly no overt agreement or acceptance of the allegation by Venture. I accept that provided that the adjudicator was acting within jurisdiction, he was bound by statutory provisions which restricted what he can have regard to in the adjudication. In Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215, the New South Wales Court of Appeal pointed out that these provisions mean that the dispute before the adjudicator will be determined by those identified on the claim and schedule and accompanying submissions, and the adjudicator is justified in determining any matter outside the "framework of the dispute that was propounded by the parties" without "addressing its merits". However, because the question of practical completion is critical to the jurisdictional fact that underpins jurisdiction, and I am required to determine the objective existence of that fact, in doing so, I am not bound by the issues raised by the parties during the adjudication. Having said this, given the significance of the identification of issues to the adjudication process, I am of the view that I am able to take into account the approach of the parties to the propounding of the dispute before the adjudicator as part of my factual determination. The failure of Venture to dispute the existence of practical completion is clearly significant and confirms other evidence which suggests that both parties were proceeding on the basis that practical completion had taken place without the giving of notice. I accept also that the apparent acceptance that this had taken place on 8 June 2022 is also a relevant but non-binding consideration.
72 However, while noting this consideration, when I take into account all of the relevant evidence, I am satisfied that practical completion occurred by no later than 28 April 2022. Although I am not able to determine the precise date, I am satisfied that both parties regarded the premises as reasonably fit for occupation by the time they entered into their discussions about final payment in March and April, and that in fact the premises were by then reasonably fit for occupation. Because the parties were proceeding without requiring formal notice, having regard to cl 25(a), the works were deemed to be practically completed at this time. It follows that I reject the adjudicator’s finding that practical completion did not take place until 8 June 2022. I find that practical completion occurred on or before 28 April 2022.
73 This finding has the following consequences. Firstly, it determines the existence of a reference date in relation to the payment claim for monies due upon practical completion under cl 26 of the contract, which is the basis of the entitlement which is claimed in invoice 0359. To this extent, the primary argument raised by ground (i) of the general order can be rejected. There is in fact a valid reference date which supports the payment claim. However, the finding is significant with respect to two other issues. Firstly, the issue remains, relevant to ground (i), that the adjudicator selected a reference date which both parties agree is incorrect, and proceeded with the adjudication on that basis. Secondly, there is the issue raised in ground (ii). In particular, identification of the correct reference date bears on the question of whether the payment claim under adjudication was delivered in breach of the requirement in s 17(4) that the claimant must not serve more than one payment claim in respect of each reference date.
The adjudicator's finding of an incorrect reference date
74 My finding that the relevant payment claim was in respect of a valid reference date fulfils a necessary precondition of the adjudicator's jurisdiction. However, as I have discussed, the adjudicator selected a reference date which both parties agree is incorrect and without any statutory or contractual basis. As to the effect of such an error on the question of jurisdiction, Doyle J pointed out in Allway that it is necessary that the adjudicator's determination in respect of the payment claim must be in respect of the correct reference date:
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"By way of explanation, I consider that not only must a payment claim under the SOP Act be supported by an available reference date, but also any adjudicator's determination in respect of that payment claim must be in respect of the same reference date. In other words, while the existence of a payment claim in respect of an available reference date is sufficient to trigger the adjudicator's statutory authority or jurisdiction to adjudicate and determine a payment claim under the SOP Act, it is not an authority or jurisdiction at large. It is confined to an authority or jurisdiction in respect of that reference date (and the right to make a progress claim that underpins it). A payment claim in respect of a particular reference date only provides authority or jurisdiction for an adjudicator's determination in respect of a payment claim with that reference date. Conversely, and relevantly here, an adjudicator's determination in respect of a payment claim with a particular reference date can only be sustained by a payment claim with that reference date; it cannot be sustained by reference to a payment claim with a different reference date.
In my view, regardless of whether one describes the error as an error by the Adjudicator in treating the payment claim as a valid payment claim in respect of the reference date of 23 December 2017, or an error in making a determination by reference to an unavailable reference date of 23 December 2017, the error is a jurisdictional one."
75 The critical point raised by these comments is that the adjudicator will only exercise the jurisdiction conferred on him under the Act if he is addressing the payment claim by reference to the contractual right to make that claim. This requirement was reinforced, and indeed determinative, in Brolton. The adjudicator in that case had determined that the relevant and available reference date was 23 October 2018. Before the Court of Appeal, it was common ground that that date was not an available reference date, because the contract had in fact been terminated on 3 October 2018 and the entitlement to progress payments did not survive termination. Although an earlier date, 25 September 2018 was available, the court rejected an argument that the existence and availability of that date ensured the validity of the adjudication. The court held that the adjudicator did not address the issue within jurisdiction, which was to determine the progress payment based on the earlier date. In particular, it was noted that the claim addressed by the adjudicator, which was based on a reference date of 23 October, meant that the assessment included work performed after 25 September. In arriving at this conclusion, the Court of Appeal rejected arguments that the existence of any available reference date could render a payment claim and consequent adjudication process valid, and further that an incorrect conclusion by the adjudicator in relation to the reference date was an error within jurisdiction, and hence did not affect jurisdiction. The Court said:
"The task the adjudicator was authorised and required by s 22(1) to undertake was to determine the amount of the progress payment (if any) to which Brolton was entitled pursuant to its payment claim under s 13(1), that entitlement arising on and from the available reference date in respect of which the payment claim was made. As was observed by the Court in Southern Han at [62], s 13(1) operates 'to require that each payment claim be supported by a reference date' and produces the result that 'a document purporting to be a payment claim that is not in respect of a reference date is not a payment claim under the Act'.
Contrary to Brolton's submissions, it is not to the point that there was an available reference date of 25 September 2018 under the contract. The adjudicator did not embark upon the determination of the amount of the progress payment (if any) to be paid by Hanson to Brolton on the basis that the payment claim was supported by a reference date of 25 September 2018. Instead, he determined the progress payment to which Brolton was purportedly entitled on the basis that the payment claim was made in respect of a reference date of 23 October 2018. As that was not an available reference date the payment claim supported on that basis was not a payment claim under the Act and ineffective to trigger the procedure established by Pt 3 (see Southern Han at [62]). It follows that the adjudicator had no authority or jurisdiction to make any determination with respect to Brolton's payment claim supported and understood in that way. Accordingly, jurisdictional error of the kind grounding relief in the nature of certiorari was established: Quasar Constructions NSW Pty Ltd v Demtech Pty Ltd [2004] NSWSC 116; (2004) 20 BCL 276 at [35] (Barrett J)."
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76 In this case, it can be argued that notwithstanding selection of the incorrect date, the adjudicator was still conducting the adjudication on the basis of a payment claim for the entitlement arising upon practical completion. In this sense, although he determined the incorrect date, the argument is that this mistake did not have any material impact upon the assessment because the adjudicator's focus was on the correct enquiry, that is the assessment of the payment due under cl 26 on the basis of practical completion. In other words it can be argued, that the reference date although incorrect was still representative "of the right that underpins it", namely the entitlement of Jayspec to the said payment.
77 Although there is some force to this argument, I am satisfied that the adjudicator fell into jurisdictional error by his incorrect determination of the reference date. The adjudicator relied on an incorrect finding that practical completion had occurred on 8 June 2022, and then incorrectly applied subpar (b) of the statutory definition of "reference date" to conclude that the relevant reference date was 30 June 2022. He then inexplicably and clearly incorrectly determined that a reference date arose on the last day of each month thereafter. The need to correctly identify the reference date is important for the reasons explained by Doyle J in Allway. It is critical to the proper operation of the statutory scheme, and is inextricably connected to the entitlement upon which the payment claim is based. Where the reference date is based on the entitlement to claim all monies due under the contract upon practical completion, selection of the correct date may have considerable implications in terms of the proper calculation of that entitlement under the contract. It is also important in respect of the application of s 17(4) of the Act.
78 Accordingly, I am satisfied that the adjudicator's selection of an irrelevant and incorrect date as the reference date has resulted in jurisdictional error. However, before determining the question of relief, I will consider the issue raised by ground (ii).
Ground (ii) – Service of more than one claim in respect of the same reference date
79 Venture's argument under this ground is that because invoice 0300 asserts a claim for payment under cl 26 upon practical completion, that the service of a further claim for a payment arising for the same reason is in breach of s 17(4) of the Act. In particular, they each constitute a payment claim in respect of the same reference date, which is the date of practical completion.
| 80 | In order to consider the arguments related to this question, it is convenient to set out s 17 in full: "17. Claims for payment may be made |
(1) A person (in this Act referred to as a 'claimant') who is, or who claims to be, entitled to a progress payment under section 12 in respect of a building or construction contract may serve a payment claim on the person who is, or may be, liable under the contract to make the payment.
(2) A payment claim must –
(a) be in writing; and (b) be addressed to the person on whom it is served; and (c) state the name of the claimant; and (d)
identify the building work or construction work, or building or construction- related goods and services, to which the progress payment relates, in sufficient detail to enable the person on whom it is served to assess the claim; and
(e)
specify the amount of the progress payment that the claimant claims is due; and
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(f) state that the claim is made under this Act; and (g) include the prescribed details, if any.
(3) A payment claim may also include an amount –
(a) that the respondent is liable to pay the claimant under section 29(3) ; or (b)
that is held under the building or construction contract by the respondent, as security or otherwise, and that the claimant claims is due for release.
(4) A claimant must not serve more than one payment claim in respect of each
reference date under the building or construction contract.
(5) However, subsection (4) does not prevent the claimant from including in a
payment claim an amount that has been the subject of a previous claim.
(6) A payment claim may be served only within whichever of the following periods
occurs later:
(a) the period determined by or in accordance with the terms of the building or construction contract; (b) the period of 12 months after –
(i) the building work or construction work to which the claim relates was last carried out; or (ii) the building or construction-related goods and services to which the claim relates were last supplied."
81 As I have already noted, this issue was raised by Venture in its submissions in response to the adjudication application. The adjudicator dealt with the matter briefly at paragraph 24:
"24 There is no evidence that, in breach of section 17(4) of the Act, the Claimant has served more than one payment claim in respect of the Reference Date and I am satisfied that it has not."
82 The adjudicator provided no further reasons for arriving at this conclusion. However, the paragraph followed the adjudicator's assessment of the reference date, quoted above, in which he determined that practical completion occurred on 8 June 2022, and the reference date was 31 January 2023. It can be inferred that having made this determination, the adjudicator did not consider it necessary to further consider this question. Invoice 0300 clearly predated the reference date of 31 January 2023, and even practical completion on 8 June 2022, and accordingly could not have been a payment claim for an entitlement which arose on and from the relevant reference date so found. The adjudicator's determination in this regard is therefore tainted by his error with respect to the reference date.
83 The cases make it clear that s 17(4) creates a statutory prohibition on serving more than one payment claim in respect of the same reference date, and that a payment claim served in breach of the prohibition is invalid and there is no jurisdiction to conduct an adjudication in respect of it. See Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69 per Allsop P; The Trustees of the Roman Catholic Church for the Diocese of Lismore v T F Woollam and Son [2012] NSWSC 1559 per McDougall J at [44]-[46].
84 In my view, the service of the payment claim constituted by invoice 0359 breached the provisions of s17 (4). It is clear that invoice 0300 and invoice 0359 each make a claim in respect of the same entitlement, that is the payment due on practical completion under cl 26 of the contract. There can only be one date of practical completion. Accordingly, having regard to my finding that invoice 0359
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related to the reference date arising on practical completion, which as a matter of objective fact, occurred on or before 28 April 2022, it will be in respect of the same reference date as that relevant to invoice 0300.
85 In an argument which, in fact, related to the availability of a reference date of 31 March 2022, a date that can be disregarded because it relies on the flawed application of subpar (b) of the definition of reference date, Mr Street submitted that there is merit in the arguments raised by Venture in the payment schedule relating to invoice 0300, which challenge the validity of that invoice as a payment claim under the Act. Accordingly, it is submitted that invoice 0300 should not be regarded as a valid payment claim for the purposes of s 17(4), and therefore there cannot have been a breach of that provision.
86 The challenge contained in the said payment schedule to the validity of the payment claim in invoice 0300 which Jayspec now accepts has merit, is limited to the claim that the invoice did not identify building work or construction work, or building or construction-related goods and services in sufficient detail to enable Venture to assess the claim. The payment schedule claimed that the failure to so identify this information was a breach of the mandatory formal requirements of a payment claim contained in s 17(2)(d), and that this breach rendered the claim invalid.
87 There is no question that s 17(2) sets out mandatory requirements of a payment claim. The use of the word "must" makes this clear having regard to the provisions of s 10A of the Acts Interpretation Act 1931. There is ample authority from other Australian jurisdictions to the effect that failure to comply with provisions similar to s 17(2)(d) renders a payment claim invalid. See, for example, Seabay Properties Pty Ltd v Galvin Construction Pty Ltd & Anor [2011] VSC 183; Facade Designs International Pty Ltd v Yuanda Vic Pty Ltd [2020] VSC 570. However, as far as my research reveals, these cases are invariably concerned with circumstances in which the claimant has attempted to enforce a payment claim by use of the procedures under the corresponding legislation to the Act. I have not been able to locate, nor have I been referred to, cases which deal with the relevance of such invalidity to the application of s 17(4) or its interstate equivalents.
88 If the issue of compliance with s 17(2)(d) is a jurisdictional fact, including in respect of the application of s 17(4), then on the reasoning already discussed, it may well be a matter for objective determination by me. However, despite the argument advanced by Mr Street, the parties have not addressed this question in a detailed way. In this regard, I note that the issues raised in the payment schedule in respect of invoice 0300 were not the subject of adjudication, and each party now seems to be taking the opposite position to that taken at the time of the claim and the payment schedule. Further, neither party has adduced comprehensive evidence concerning this issue. Of course, it is not strictly necessary to resolve this question having regard to my conclusion in respect of ground (i). However, I will address the issue to the extent possible on the available evidence.
89 In doing so, I take into account the approach of courts in other jurisdictions with respect to this question. For example, in John Beever (Aust) Pty Ltd v Paper Australia Pty Ltd [2019] VSC 126, Lyons J, after a thorough analysis of the relevant authorities, at [85] summarised the principles relevant to the Court's determination of such an issue:
"(1) The test of whether a claim is a payment claim for the purpose of the Act is objective;
(2) However, the manner in which compliance is tested is not overly demanding and should not be approached in an unduly technical manner or from an unduly critical point of view;
(3) For the purposes of the identification requirement, it is necessary that the payment claim reasonably identifies the construction work to which it relates such that the basis of the claim is reasonably comprehensible to the recipient party when
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considered objectively i.e. from the perspective of a reasonable party who is in the
position of the recipient;(4) In evaluating the sufficiency of the identification of the work, it is appropriate to take into account the background knowledge of the parties from their past dealings and prior exchanges of information including correspondence passing between them before and at the time of the payment claim. To that extent, the Court may go beyond the face of the document itself."
90 Accordingly, in assessing whether the purported payment claim incorporated in invoice 0300 complied with s17(2)(d), I have regard to the negotiations, discussions and email communications between the parties leading up to the service of the invoice. This material clearly fits within the description of "prior exchanges of information including correspondence passing between them before and at the time of the payment claim". As already noted, both parties had discussed resolving the question of the amount of the relevant payment on the basis of the cost price of the work, plus a 15% builder margin. This was not a methodology provided by the contract, so it would only be legally binding if it was the subject of agreement. Mr Kingston's evidence is that the parties, in fact, reached agreement during a discussion on 22 March 2022, that the final price would be $552,000 plus a builder's margin of 15 %. In his affidavit, Mr Kingston asserts with precision the components that make up the calculation of $552,000. It can be inferred that Mr Vander Laan also agreed to this methodology, having regard to the contents of invoice 300 and the covering email. However, the difference between the parties was Jayspec's assertion of a cost price of $579,438.34. There is no detail in the invoice or email as to how this amount is calculated, but I note that it is within $1000 of the fixed price of the contract. It is also substantially less than the aggregate due pursuant to a schedule provided by Mr Vander Laan to Mr Kingston under cover of an email on 17 March, which in his affidavit Mr Kingston says "provided me with a cost breakdown of the building works to date".
91 Having regard to this material, I am satisfied that the claim made by Jayspec in the invoice was calculated in accordance with a clearly understandable, sufficiently identified and agreed methodology. The only component not explained was the basis of the difference in the cost price. Despite this, I am satisfied that there was adequate compliance with the requirements of s 17(2)(d), because the work to which the cost related had been identified in the said schedule. The only matter not explained was the reason for the reduction. In my view, keeping in mind that the manner in which compliance is tested should not be "overly demanding and should not be approached in an unduly technical manner or from an unduly critical point of view", I am satisfied that the basis of the claim would have been comprehensible to a reasonable person in the position of Mr Kingston.
92 Mr Street also submitted that the inadequacy of communication of the claim can be demonstrated by comparison with the greater detail provided in and with invoice 0359. I do not accept this. Invoice 0359 employed a different methodology. In particular, it does not rely on a purported agreement to calculate the final payment on the basis of cost plus a 15% margin. The greater detail provided in the later claim is consistent with the methodology employed by it, and says nothing about the adequacy of the information provided in and with invoice 0300.
93 Accordingly, I would not hold that the payment claim incorporated in invoice 0300 is invalid because it fails to comply with s 17(2)(d).
94 Although I have found that the payment claim in invoice 0300 is valid in the circumstances of this case, I do not wish to be taken as having concluded that the application of the prohibition in s 17(4) requires this to be demonstrated in every, or indeed, any case. There is a difference between reviewing validity where the issue is the enforcement under the Act of the payment claim in question, and doing so in respect of the application of the prohibition against more than one payment claim. It is arguable that the prohibition relates to all documents which at least purport to be payment claims, whether they are valid because of compliance with the requirements of s 17(2) or not. Having said this, it is
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unnecessary in view of my findings in respect of ground (i) and the validity of invoice 0300, to further
consider this question.95 Mr Street also argued that irrespective of my conclusion with respect to the validity of invoice 0300, Venture is now estopped from asserting that the invoice is a valid payment claim for the purposes of s17(4). The argument is that Venture should be held to its position communicated in the payment schedule. I reject this argument. In particular, it has not been explained to me how this purported estoppel arises. I assume the argument is that Jayspec has accepted the position put by Venture in the payment schedule which challenged the validity of the payment claim in invoice 0300, and has relied on this position to serve a further payment claim. The cases do support the proposition that the parties can agree to abandon a payment claim, and substitute another, without breach of s 17(4). See for example Delaney J in Argyle when endorsing an observation of Marks J in Citi-Con v Punton's Shoes [2020] VCC 804. However, there is no evidence or even suggestion that that is what occurred in this case. Further, there are a number of difficulties with the estoppel argument. Firstly, Venture's reasons for not accepting that it will pay the amount claimed do not seem to me to amount to a representation of existing fact or future intention. They are simply arguments, which remain untested because no adjudication application was made by Jayspec. Secondly, even if they do amount to some form of representation, there is no evidence of reliance by Jayspec. Such reliance could have been the subject of evidence from Mr Vander Laan, but was not. Reliance cannot be inferred from the mere fact of service of invoice 0359. Finally, even if there was reliance, it is difficult to understand how detriment arises. Jayspec is not held out of its contractual entitlements because it relies on two claims based on the same entitlement. It is, however, prevented from serving two such claims in respect of the same reference date, for the purpose of this Act. Either it has breached s 17(4) or it has not. That determination depends solely on the actions of Jayspec, and nothing done or asserted by Venture will affect that outcome. There is no merit in this argument.
96 Mr Street also argued that invoice 0359 incorporated an amount which was the subject of the earlier claim, and that therefore because of s 17(5), it did not breach the prohibition contained in s17 (4). I also reject this argument. The claim subject to the adjudication was for a greater sum than that claimed in invoice 0300, and was calculated in accordance with a completely different methodology. Section 17(5) will apply where a further payment claim based on a different reference date includes an amount contained in an earlier claim. That circumstance, and hence that section, is not applicable in this case.
97 Accordingly, I conclude that service of the payment claim in invoice 0359 was prohibited by s 17(4). Even if the claim was otherwise valid, this finding would render the relevant payment claim invalid and its adjudication without jurisdiction.
Discretion
98 Mr Street submitted that upon a finding of jurisdictional error, the Court has discretion with respect to relief, and this includes the discretion not to grant relief at all. He urged me to take that course, on the basis that ultimately the adjudicator addressed the correct question, that is the payment due on practical completion.
99 It is well established that the grant of prerogative relief is discretionary. However, where the decision in question has been made beyond jurisdiction, and the applicant is aggrieved by the invalid decision, it would be rare for relief to be withheld on discretionary grounds. In R v Ross-Jones; Ex parte Green (1984) 156 CLR 185, Gibbs J said:
"If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course."
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100 See also J Hutchinson Pty Ltd v Cada Formwork Pty Ltd & Ors [2014] QSC 63.
101 I am not persuaded to exercise my discretion to refuse relief. In the circumstances of the case, I take a similar view to that expressed by Doyle J in Allway:
"I observe that even in circumstances where jurisdictional error has been established, the Court may, in its discretion, withhold relief. It might consider doing so here, for example, on the basis that the Determination could have been sustained (save as to the date on which payment was due and payable) on the basis of a different reference date. However, I do not consider that the circumstances of this case warrant me withholding relief. It might be said that the error in this case was, on one view, relatively technical. But it must be remembered that the error was in the context of a statutory regime that is designed to ensure the rapid flow of money in relation to construction contracts, and to that end places the party in Westside's position under significant time pressure in responding to claims made. In that context, I see no difficulty in demanding that the party in R&D's position be accurate and consistent in its utilisation of the statutory scheme, including in its identification of the reference date upon which it relies."
102 In this case, I would not regard the adjudicator's error concerning the reference date as "technical". Further, to the extent that the process was affected by uncertainty concerning whether and, if so, when practical completion had been achieved, this outcome is primarily a consequence of Jayspec's failure to provide notice and comply generally with the procedural requirements of cl 25. In any event, as Doyle J pointed out, it must be remembered that the purpose of the adjudication is not to finally resolve the rights and obligations of the parties under the contract, but rather to provide a statutory entitlement to payments, and consequent allocation of risk, pending the substantive determination. It is consistent with this statutory context that relief under the Act only be available where there has been strict compliance with the requirements of the legislation.
103 Accordingly, I intend to make an order quashing the adjudicator's determination. I will hear from counsel as to the appropriate terms of that order, and any consequential relief.
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