Watpac Construction (Qld) Pty Ltd v KLM Group Ltd - [2013] QSC 236

SUPREME COURT OF QUEENSLAND

CITATION:

Watpac Construction (Qld) Pty Ltd v KLM Group Ltd & Ors [2013] QSC 236

PARTIES:

WATPAC CONSTRUCTION (QLD) PTY LTD
ABN 71 010 462 816
(applicant)
v
KLM GROUP LTD
ABN 66 089 479 66
(first respondent)
and
ALAN STAPLETON
(second respondent)
and
RICS DISPUTE RESOLUTION SERVICES
ABN 18 089 873 067

(third respondent)

FILE NO/S:

BS 1079 of 2013

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

6 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

17, 18 and 19 April 2013

Further written submissions provided on 24 April 2013 and 6 May 2013

JUDGE:

Philip McMurdo J

ORDER:

The originating application is dismissed

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – AJUDICATION OF PAYMENT CLAIMS – where respondent and applicant entered into a contract for certain construction works – where respondent made payment claim pursuant the Building and Construction Industry Payments Act 2004 (Qld) – where the payment claim was referred to adjudication – where adjudicator ordered applicant to pay respondent – where applicant seeks judicial review of adjudicator’s decision on a number of grounds – where applicant contends adjudicator’s decision is affected by jurisdictional errors by misinterpreting the contract – whether a misinterpretation of the contract amounts to a jurisdictional error

Building and Construction Industry Payments Act 2004 (Qld), s 13

Akerhielm v De Mare [1959] AC 789, applied
BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2012] QSC 346, applied
Chase Oyster Bar v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWSC 190, cited
Clyde Bergemann Senior Thermal Pty Ltd v Varley Power Services Pty Ltd [2011] NSWSC 1039, applied
Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385; [2005] NSWCA 228, applied
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 163, cited
Hervey Bay (JV) Pty Ltd v Civil Mining and Construction Pty Ltd [2008] QSC 58, discussed
Holmwood Holdings v Halkat Electrical Contractors [2005] NSWSC 1129, cited

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, cited
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563, applied
Lahey Constructions Pty Ltd v Trident Civil Contracting Pty Ltd [2013] NSWSC 176, cited
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140, cited
Peninsular Balmain v Abigroup Contractors Pty Ltd [2002] NSWCA 211, discussed
Thiess Pty Ltd v Warren Bros Earthmoving Pty Ltd and Anor [2012] QCA 276, cited

COUNSEL:

P Dunning SC, with M Smith, for the applicant
D Savage SC, with D O’Brien, for the first respondent
No appearance for the second respondent

No appearance for the third respondent

SOLICITORS:

HWL Ebsworth for the applicant
McInnes Wilson for the first respondent
No appearance for the second respondent

No appearance for the third…

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: [2013] QSC 236
Decision Date: 6 September 2013

CaseChat Overview and Summary

Watpac Construction (Qld) Pty Ltd brought an application for judicial review of an adjudicator's decision in a dispute with KLM Group Ltd, regarding a payment claim made under the Building and Construction Industry Payments Act 2004 (Qld). The respondent, KLM Group Ltd, had issued a payment claim to the applicant, Watpac Construction (Qld) Pty Ltd, pursuant to the Act, which was referred to adjudication. The adjudicator issued a decision ordering the applicant to make payment to the respondent. The applicant sought judicial review of the adjudicator's decision, arguing that it contained jurisdictional errors, including a misinterpretation of the contract between the parties.

The court was required to determine whether the adjudicator's decision contained any jurisdictional errors, specifically whether the alleged misinterpretation of the contract by the adjudicator amounted to such an error. The applicant contended that the adjudicator failed to properly interpret the terms of the contract and, in doing so, made an error that affected the outcome of the adjudication. The court examined the adjudicator's decision and the contract in question to determine whether the adjudicator had indeed misinterpreted the contract and, if so, whether this amounted to a jurisdictional error.

In dismissing the application for judicial review, the court found that the adjudicator's decision did not contain any jurisdictional errors. The court held that the adjudicator's interpretation of the contract was reasonable and that any errors in interpretation did not amount to a jurisdictional error. The court found that the adjudicator had properly considered the contract terms and the evidence presented, and that the decision was within the scope of the adjudicator's authority. As a result, the application for judicial review was dismissed, and the adjudicator's decision remained in place, requiring the applicant to make payment to the respondent.

The court's final order was that the originating application for judicial review was dismissed. The adjudicator's decision ordering the applicant to pay the respondent remained valid, and the applicant was required to make the payment as ordered. The respondent was entitled to the payment as determined by the adjudicator, and the applicant's application for judicial review was unsuccessful.

Orders

Orders of the court

The originating application is dismissed

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:	Watpac Construction (Qld) Pty Ltd v KLM Group Ltd & Ors [2013] QSC 236
PARTIES:	WATPAC CONSTRUCTION (QLD) PTY LTD ABN 71 010 462 816 (applicant) v KLM GROUP LTD ABN 66 089 479 66 (first respondent) and ALAN STAPLETON (second respondent) and RICS DISPUTE RESOLUTION SERVICES ABN 18 089 873 067 (third respondent)
FILE NO/S:	BS 1079 of 2013
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	6 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	17, 18 and 19 April 2013 Further written submissions provided on 24 April 2013 and 6 May 2013
JUDGE:	Philip McMurdo J
ORDER:	The originating application is dismissed
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – AJUDICATION OF PAYMENT CLAIMS – where respondent and applicant entered into a contract for certain construction works – where respondent made payment claim pursuant the Building and Construction Industry Payments Act 2004 (Qld) – where the payment claim was referred to adjudication – where adjudicator ordered applicant to pay respondent – where applicant seeks judicial review of adjudicator’s decision on a number of grounds – where applicant contends adjudicator’s decision is affected by jurisdictional errors by misinterpreting the contract – whether a misinterpretation of the contract amounts to a jurisdictional error Building and Construction Industry Payments Act 2004 (Qld), s 13 Akerhielm v De Mare [1959] AC 789, applied BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2012] QSC 346, applied Chase Oyster Bar v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWSC 190, cited Clyde Bergemann Senior Thermal Pty Ltd v Varley Power Services Pty Ltd [2011] NSWSC 1039, applied Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385; [2005] NSWCA 228, applied Craig v South Australia (1995) 184 CLR 163; [1995] HCA 163, cited Hervey Bay (JV) Pty Ltd v Civil Mining and Construction Pty Ltd [2008] QSC 58, discussed Holmwood Holdings v Halkat Electrical Contractors [2005] NSWSC 1129, cited Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, cited Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563, applied Lahey Constructions Pty Ltd v Trident Civil Contracting Pty Ltd [2013] NSWSC 176, cited Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140, cited Peninsular Balmain v Abigroup Contractors Pty Ltd [2002] NSWCA 211, discussed Thiess Pty Ltd v Warren Bros Earthmoving Pty Ltd and Anor [2012] QCA 276, cited
COUNSEL:	P Dunning SC, with M Smith, for the applicant D Savage SC, with D O’Brien, for the first respondent No appearance for the second respondent No appearance for the third respondent
SOLICITORS:	HWL Ebsworth for the applicant McInnes Wilson for the first respondent No appearance for the second respondent No appearance for the third…