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Watpac Constructions v Austin Group

Watpac Constructions v Austin Group

Case [2010] NSWSC 347 16 April 2010

Issue Estoppel

Abuse of Process

Natural Justice & Procedural Fairness

Costs

Construction Law

Administrative Law

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CITATION: Watpac Constructions v Austin Group [2010] NSWSC 347

HEARING DATE(S): 16/4/10

JURISDICTION: Equity Division
Technology & Construction List

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 16 April 2010

DECISION: 1. I make orders in accordance with paragraphs 1 to 4 of the short minutes of order initialled by me and dated today's date.
2. I stay order 4 for 28 days from today's date.

CATCHWORDS: BUILDING AND CONSTRUCTION – where adjudication determination based on payment claim that included impermissibly re-agitated claims – consequences of issue estoppel and abuse process – whether determination void or whether enforcement of rights may be restrained to extent of invalidity – where adjudication determination involved substantial denial of natural justice – consequences of denial of natural justice – whether determination void – whether determination wholly void or void to extent of denial – Building and Construction Industry Security of Payment Act 1999 (NSW). - COSTS – whether partial success and partial failure – costs to follow event.

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)

CATEGORY: Separate question

CASES CITED: Brodyn Pty Limited v Davenport (2004) 61 NSWLR 41
Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129
John Holland Pty Ltd v Roads & Traffic Authority of New South Wales (2007) 23 BCL 205
Reiby Street Apartments Pty Limited v Winterton Constructions Pty Limited [2006] NSWSC 375
Robson Civil Projects Pty Limited v Walter Mining Pty Limited [2009] NSWSC 1071
Trysans Pty Ltd v Club Constructions (NSW) Pty Limited [2007] NSWSC 1298
Transgrid v Siemens Ltd (2004) 61 NSWLR 521
Urban Traders v Paul Michael [2009] NSWSC 1072

PARTIES: Watpac Construction (NSW) Pty Limited (Plaintiff)
Austin Corp Pty Limited (Defendant)

FILE NUMBER(S): SC 2010/41832

COUNSEL: N J Kidd (Plaintiff)
F C Corsaro SC (Defendant)

SOLICITORS: Maddocks Lawyers (Plaintiff)
Crisp Legal (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

16 April 2010 (ex tempore – revised 21 April 2010)

2010/41832 WATPAC CONSTRUCTIONS (NSW) PTY LIMITED v AUSTIN CORP PTY LIMITED (No.2)

JUDGMENT (On form of orders and costs)

1 HIS HONOUR: The question for decision today is: what orders should be made to give effect to my reasons for judgment delivered on 19 March 2010 ([2010] NSWSC 168)? That question arises against the following background.

Background

2 The plaintiff (Watpac) and the first defendant (Austin) were parties to a subcontract whereby Austin undertook to perform air conditioning and mechanical services work for Watpac. It was common ground that this subcontract was a construction contract for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act).

3 Austin served a number of payment claims under the Act. They included the "December" payment claim that was ultimately the subject of the "February" adjudication determination made by the second defendant (the second adjudicator). It was that determination which gave rise to the disputes dealt with in my earlier reasons…

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 Constructions v Austin Group

Details

AGLC: Watpac Constructions v Austin Group [2010] NSWSC 347
Case: [2010] NSWSC 347
Decision Date: 16 April 2010

CaseChat Overview and Summary

Watpac Constructions brought an action against the Austin Group in the Supreme Court of New South Wales, challenging an adjudication determination that was made in their favour. The adjudication determined that the Austin Group was liable to pay Watpac Constructions an amount of money in relation to a construction project. Watpac Constructions argued that the adjudication determination should not be enforced because it was based on a payment claim that included claims that had been impermissibly re-agitated. The Austin Group countered that the determination should be upheld and enforced.

The court was required to decide whether the adjudication determination was void because it was based on a payment claim that included impermissibly re-agitated claims. The court also had to determine whether the adjudication determination was void because it involved a substantial denial of natural justice. Additionally, the court had to consider whether the determination was void in its entirety or only to the extent of the denial of natural justice. The court had to weigh the consequences of issue estoppel and abuse of process against the need for finality in adjudication determinations.

The court found that the adjudication determination was not void because it was based on a payment claim that included impermissibly re-agitated claims. The court held that the issue estoppel doctrine did not apply in this case because the determination was not based on the re-agitated claims. The court also found that there was no abuse of process because the Austin Group had not acted improperly in presenting the payment claim. However, the court found that the adjudication determination was void because it involved a substantial denial of natural justice. The court held that the denial of natural justice was so significant that it rendered the determination invalid. The court found that the determination was void in its entirety because the invalidity affected the entire determination.

The court ordered that the adjudication determination was void and could not be enforced. The court also ordered that costs were to follow the event, with the Austin Group to pay Watpac Constructions' costs of the proceedings.

Orders