Walton Construction (Qld) Pty Ltd v Corrosion Control Technology Pty Ltd - [2011] QSC 67

SUPREME COURT OF QUEENSLAND

CITATION:

Walton Construction (Qld) Pty Ltd v Corrosion Control Technology Pty Ltd & Ors [2011] QSC 67

PARTIES:

WALTON CONSTRUCTION (QLD) PTY LTD
ACN 100 833 225
(applicant)
v
CORROSION CONTROL TECHNOLOGY PTY LTD
ACN 112 091 255
(first respondent)
RICS DISPUTE RESOLUTION CENTRE
ABN 18 089 873 067
(second respondent)
PAUL ROBERTS

(third respondent)

FILE NO:

SC No 10980 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

3 June 2011

DELIVERED AT:

Brisbane

HEARING DATES:

12 November 2010; 8, 9 March 2011

JUDGE:

Peter Lyons J

ORDERS:

1.    The fifth payment claim made by the first respondent is invalid;

2.    The adjudication decision made by the third respondent is void; and

3.    The amount paid into Court by the applicant of $258,944.14 (plus accretions thereon) be released to the applicant.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PAYMENT CLAIMS – where the applicant was the main contractor for a building project – where the first respondent was a sub-contractor engaged by the applicant – where the first respondent made a claim for payment from the applicant – whether the claim for payment was valid

ARBITRATION – CONDUCT OF THE ARBITRATION PROCEEDINGS – POWERS, DUTIES AND DISCRETION OF ARBITRATOR – DUTY TO OBSERVE RULES OF NATURAL JUSTICE – where the third respondent made a decision under the Building and Construction Industry Payments Act 2004 (Qld) regarding the claim for payment – whether the third respondent complied with the obligation to afford natural justice – whether the decision made by the third respondent was effectual

Building and Construction Industry Payments Act 2004 (Qld), s 12

Judicial Review Act 1991 (Qld), s 18, s 41

Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394, considered
Gantley Pty Ltd v Phoenix International Group Pty Ltd [2010] VSC 106, considered
John Holland Pty Ltd v TAC Pacific Pty Ltd & Ors[2009] QSC 205, considered

Northbuild Construction P/L v Central Interior Linings P/L & Ors[2011] QCA 22, applied

COUNSEL:

B E Codd for the applicant

M D Ambrose for the first respondent

SOLICITORS:

DibbsBarker for the applicant

Holding Redlich for the first respondent

PETER LYONS J: The applicant (Walton Construction) was the “main contractor” for a building project. The first respondent (CCT) was a painting sub-contractor engaged by Walton Construction. CCT has the benefit of the third respondent’s decision made under the provisions of the Building and Construction Industry Payments Act 2004 (Qld) (BCIP Act), with reference to a claim dated 21 March 2010 (fifth payment claim). Walton Construction challenges the validity of both the decision and the fifth payment claim.

Background

The contract between Walton Construction and CCT bears different dates, but appears to have been executed on behalf of CCT on 17 April 2009. The painting work the subject of the contract was to be…

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: [2011] QSC 67
Decision Date: 3 June 2011

CaseChat Overview and Summary

Walton Construction (Qld) Pty Ltd sought a declaration from the Court that a payment claim made by Corrosion Control Technology Pty Ltd was invalid and that an adjudication decision made by the Building and Construction Industry Payments Adjudicator was void. Corrosion Control Technology, a sub-contractor, had made a claim for payment against Walton Construction, the main contractor, under a sub-contract for work performed on a building project. The Adjudicator had determined that Corrosion Control Technology was entitled to be paid $258,944.14, and Walton Construction had paid this amount into Court. Corrosion Control Technology argued that the Adjudicator had not observed the rules of natural justice, but Walton Construction claimed that the payment claim itself was invalid, and thus the Adjudicator had no jurisdiction to make a determination.

The Court considered whether the payment claim made by Corrosion Control Technology was valid and whether the Adjudicator had complied with the obligation to observe the rules of natural justice. The Court found that the payment claim was invalid because it did not comply with the requirements of the Sub-contract and the Building and Construction Industry Payments Act 2004 (Qld). The Court also found that the Adjudicator had not observed the rules of natural justice, as they had not provided an opportunity for Corrosion Control Technology to respond to certain evidence before making the adjudication decision. As a result, the adjudication decision was void, and the amount paid into Court was to be returned to Walton Construction.

The Court declared that the fifth payment claim made by Corrosion Control Technology was invalid and that the adjudication decision made by the Adjudicator was void. The Court further ordered that the amount paid into Court by Walton Construction, $258,944.14 (plus any interest accrued), be released to Walton Construction. The Court's decision was based on the findings that the payment claim did not meet the requirements of the Sub-contract and the Building and Construction Industry Payments Act, and that the Adjudicator had not observed the rules of natural justice in making the adjudication decision.

Orders

Orders of the court

1. The fifth payment claim made by the first respondent is invalid;

2. The adjudication decision made by the third respondent is void; and

3. The amount paid into Court by the applicant of $258,944.14 (plus accretions thereon) be released to the applicant.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Walton Construction (Qld) Pty Ltd v Corrosion Control Technology Pty Ltd & Ors [2011] QSC 67
PARTIES:	WALTON CONSTRUCTION (QLD) PTY LTD ACN 100 833 225 (applicant) v CORROSION CONTROL TECHNOLOGY PTY LTD ACN 112 091 255 (first respondent) RICS DISPUTE RESOLUTION CENTRE ABN 18 089 873 067 (second respondent) PAUL ROBERTS (third respondent)
FILE NO:	SC No 10980 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	3 June 2011
DELIVERED AT:	Brisbane
HEARING DATES:	12 November 2010; 8, 9 March 2011
JUDGE:	Peter Lyons J
ORDERS:	1. The fifth payment claim made by the first respondent is invalid; 2. The adjudication decision made by the third respondent is void; and 3. The amount paid into Court by the applicant of $258,944.14 (plus accretions thereon) be released to the applicant.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PAYMENT CLAIMS – where the applicant was the main contractor for a building project – where the first respondent was a sub-contractor engaged by the applicant – where the first respondent made a claim for payment from the applicant – whether the claim for payment was valid ARBITRATION – CONDUCT OF THE ARBITRATION PROCEEDINGS – POWERS, DUTIES AND DISCRETION OF ARBITRATOR – DUTY TO OBSERVE RULES OF NATURAL JUSTICE – where the third respondent made a decision under the Building and Construction Industry Payments Act 2004 (Qld) regarding the claim for payment – whether the third respondent complied with the obligation to afford natural justice – whether the decision made by the third respondent was effectual Building and Construction Industry Payments Act 2004 (Qld), s 12 Judicial Review Act 1991 (Qld), s 18, s 41 Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394, considered Gantley Pty Ltd v Phoenix International Group Pty Ltd [2010] VSC 106, considered John Holland Pty Ltd v TAC Pacific Pty Ltd & Ors[2009] QSC 205, considered Northbuild Construction P/L v Central Interior Linings P/L & Ors[2011] QCA 22, applied
COUNSEL:	B E Codd for the applicant M D Ambrose for the first respondent
SOLICITORS:	DibbsBarker for the applicant Holding Redlich for the first respondent