JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2020
DATE OF JUDGMENT:	30 September 2020
CASE MAY BE CITED AS:	Watpac Construction v CGM
MEDIUM NEUTRAL CITATION:	[2020] VSC 637

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ADMINISTRATIVE LAW – CONSTRUCTION AND ENGINEERING - Judicial Review – Application for certiorari quashing adjudication determination - Challenge to adjudication determination – Adjudicator’s jurisdiction – Existence of a valid reference date under Subcontract – Whether Adjudicator compliantly valued part of the adjudication application – Claim for summary judgment – Claim for return of money paid under mistake of fact claim – Money claim for restitution – Money had and received - Return of security - Building and Construction Industry Security of Payment Act 2002 (Vic), ss 9, 16, 23 and 48.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Reid	Maddocks
For the First Defendant	Mr C Young SC with Mr W Stephenson	Holman Fenwick Willan

HIS HONOUR:

Outline of proceeding and applications

These reasons for judgment replace reasons for judgment in this proceeding handed down on 30 September 2020, as a result of confirmation on 6 October 2020 that parts of the contract relied upon by the plaintiff in relation to the below cross application in relation to the Torquay and Bannockburn Projects was relied upon in error and did not form part of those Contracts.[1]
[1]This revised Judgment replaces the reasons for judgment provided to the parties via email on 30 September 2020 at 6.46pm. On Monday 5 October 2020 at 5.58pm an issue was raised by the Court with the parties in relation to the reasons for judgment of 30 September 2020, and specifically as to whether in relation to the first defendant’s cross-claims, argument had proceeded on an incorrect definition of cl 1.1, ‘Progressive Payment Claim Reference Date’ under the Torquay and Bannockburn Contracts (Contracts). The plaintiff’s solicitors were requested to confirm whether in its written submissions of 3 February 2020, at paragraph [12] and following, it had referred to and relied upon the incorrect version of cl 1.1 and definition of ‘Progress Payment Claim Reference Date’. On Tuesday 6 October 2020 at 2.27pm the plaintiff’s solicitors confirmed that paragraph [12] and following of their written submissions dated 3 February 2020, erroneously referenced the incorrect definition of the term ‘Progressive Payment Claim Reference Date, being the definition contained in the separate Casey Hospital Contract (CB48) and the subject of the plaintiff’s judicial review application, rather than the definition contained in the Torquay and Bannockburn Contracts the subject of the first defendant’s cross-application (Cross-claim CB104). On Tuesday 6 October 2020 at 4.14pm parties were advised in light of the above confirmation, the reasons for Judgment…

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.

Continue reading Watpac Construction v CGM

Details

AGLC: Watpac Construction v CGM [2020] VSC 637
Case: [2020] VSC 637
Decision Date: 30 September 2020

CaseChat Overview and Summary

Watpac Construction brought a judicial review application against CGM, challenging an adjudication determination. The application was heard and determined by the Supreme Court of Victoria. The primary issue the Court was required to decide was whether the adjudicator had jurisdiction to make the adjudication determination, specifically whether there was a valid reference date under the subcontract, and if the adjudicator had compliantly valued the part of the adjudication application. The Court also considered whether there was a valid claim for summary judgment, a claim for the return of money paid under a mistake of fact, a money claim for restitution, and a return of security.

The Court found that the adjudicator had jurisdiction to make the adjudication determination, as there was a valid reference date under the subcontract. The Court also found that the adjudicator had compliantly valued the part of the adjudication application. The Court dismissed the claim for summary judgment and the claim for the return of money paid under a mistake of fact, finding that these claims were not properly before the Court. The Court found that the money claim for restitution and the return of security were not applicable in the circumstances of this case. The Court ultimately dismissed the application for judicial review, finding that the adjudication determination was valid and should be enforced.

The Court made no orders for costs. The adjudication determination was to stand as valid, and the parties were directed to comply with its terms. The Court did not make any orders for the return of money paid or security, as these claims were not upheld. The decision serves as a reminder of the importance of ensuring that adjudication determinations are made in compliance with the relevant legislation and that the parties are aware of their rights and obligations under the Building and Construction Industry Security of Payment Act 2002 (Vic).

Orders