Vinson v Neerim Properties Developments Pty Ltd - [2016] VSC 321

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST

S ECI 2016 000080

THERESA ANNE VERONICA VINSON	Plaintiff
v
NEERIM PROPERTIES DEVELOPMENTS PTY LTD (ACN 087 570 045)	Defendant

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	IN CHAMBERS
DATE OF JUDGMENT:	9 JUNE 2016
CASE MAY BE CITED AS:	VINSON v NEERIM PROPERTIES DEVELOPMENTS PTY LTD
MEDIUM NEUTRAL CITATION:	[2016] VSC 321

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BUILDING CONTRACT – Payment claim purportedly made under the Building and Construction Industry Security of Payment Act 2002 (Vic) (the ‘Act’) – Whether the Act applies to reason of s 7(2)(b) of the Act – Court not able to determine this issue on the papers given the issues of fact in controversy – Whether adjudication application under the Act is valid – Purported notice under s 18(2)(a) of the Act not valid – Injunction granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Andrew of Counsel	Russo Pelicano Carlei
For the Defendant	Mr Alex Sezenias, Director of the Defendant

HIS HONOUR:

This proceeding arises under the Building and Construction Industry Security of Payment Act 2002 (Vic) (the ‘Act’).

By Originating Process dated 28 April 2016, the Plaintiff, Theresa Anne Veronica Vinson (‘Ms Vinson’), seeks the following orders:

(a) a declaration that the Defendant company’s, Neerim Properties Developments Pty Ltd (‘Neerim’), claim for payment served on 22 January 2016 (the ‘Payment Claim’) is not a valid payment claim under the Act;

(b) an injunction, both interlocutory and final, restraining Neerim from applying for an adjudication of its Payment Claim.

On 28 April 2016, the Court granted Ms Vinson an interlocutory injunction retaining Neerim from pursuing the Payment Claim at adjudication.

This proceeding was decided ‘on the papers’ in Chambers following receipt of written submissions and material from the parties.

Background facts

The relevant background facts may be summarised as follows.

Ms Vinson is the registered proprietor of a property located at 71 Karnak Road in Ashburton, in the State of Victoria (the ‘Property’).

On or about 29 November 2014, Ms Vinson entered into three separate contracts (the ‘Contracts’) with Neerim as the builder, for the erection of three town-houses on the Property.

The Contracts were in the style of HIA – Victorian New Homes Contract.

On or about 22 January 2016, Neerim sent Ms Vinson the Payment Claim, being an invoice for variations in the amount of $111,050.00 dated 21 January 2016.

On or about 4 February 2016, Ms Vinson caused her solicitors to send to Neerim a communication stating, inter alia, that

(a) the Contracts required the building works to be completed by 13 August 2015;

(b) since 13 August 2015 Neerim had been in breach of the Contracts;

(c) on 19 January 2016 Neerim suspended the building works; and

(d) the Payment Claim is rejected.

On 9 February 2016, Neerim sent an email purporting to be a notice under s 18(2) of the Act (the ‘s 18(2) Notice’) to Ms Vinson.

On 16 February…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSC 321
Decision Date: 9 JUNE 2016

CaseChat Overview and Summary

The matter before the court involved Vinson, the respondent, and Neerim Properties Developments, the appellant, in a dispute regarding a building contract and the respondent's right to an adjudication under the Building and Construction Industry Security of Payment Act 2002 (Vic). The case was heard by the Court of Appeal in Victoria. The primary issue before the court was whether the Act applied to the contract due to the nature of the work done by Vinson, and if the adjudication application was validly made under the Act. A secondary issue was whether the purported notice under section 18(2)(a) of the Act was valid.

The court found that it was unable to determine whether the Act applied to the contract due to the significant factual disputes between the parties. The court held that the adjudication application was not validly made because the notice of claim did not comply with the statutory requirements under the Act. The court further held that the purported notice under section 18(2)(a) of the Act was invalid because it did not provide the required particulars. As a result, the court granted an injunction to prevent the respondent from pursuing the adjudication application further.

The court found in favour of the appellant and dismissed the respondent's application. The court held that the Act did not apply to the contract and that the adjudication application was not validly made. The court also held that the purported notice under section 18(2)(a) of the Act was invalid. The court granted an injunction to prevent the respondent from pursuing the adjudication application further. The case was remitted to the trial judge to determine the merits of the dispute between the parties.

Orders