Weston v Perkins (WA) Pty Ltd - [2021] WASC 84

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WESTON -v- PERKINS (WA) PTY LTD [2021] WASC 84
CORAM:   ALLANSON J
HEARD:   10 FEBRUARY 2021
DELIVERED          :   7 APRIL 2021
FILE NO/S:   CIV 2083 of 2020
BETWEEN:   MAXWELL DAVID WESTON
Applicant
AND
PERKINS (WA) PTY LTD
First Respondent
AUSTPRO MANAGEMENT SERVICES GROUP PTY LTD
Second Respondent
MANDA CAPITAL HOLDINGS PTY LTD AS TRUSTEE OF THE HOLMAN STREET BUNBURY UNIT TRUST
Third Respondent

Catchwords:

Practice and procedure - Application by interpleader - Where contractor and lender both seek return of post completion - Where adjudication between contractor and principal for return of security to contractor

Legislation:

Construction Contracts Act 2004 (WA)

Result:

Third respondent entitled to the Bond

Category: B

Representation:

Counsel:

Applicant	:	No appearance
First Respondent	:	DJ Pratt
Second Respondent	:	No appearance
Third Respondent	:	RJS French

Solicitors:

Applicant	:	No appearance
First Respondent	:	Jackson McDonald
Second Respondent	:	No appearance
Third Respondent	:	Hopgoodganim Lawyers (Perth)

Case(s) referred to in decision(s):

CPB Contractors Pty Ltd v JKC Australia LNG Pty Ltd [No 2] [2017] WASCA 123
Easy Stay Mining Accommodation Pty Ltd v Grounded Construction Group Pty Ltd [2018] FCA 519

ALLANSON J:

Introduction

Maxwell David Weston was appointed the supervisor under a Building Contract between Austpro Management Services Group Pty Ltd (as principal) and Perkins (WA) Pty Ltd (as contractor). In that capacity, Mr Weston took custody of a Bond issued as Post Completion Security under the Building Contract.
In August 2020, Perkins obtained an adjudication under the Construction Contracts Act 2004 (WA), by which Austpro was liable to return the Bond to Perkins on or before 25 August 2020. Perkins called on Mr Weston to return the Bond. Austpro and Manda Capital Holdings Pty Ltd, which provided financial accommodation to Austpro for the building project, requested that Mr Weston not return it.
On 28 October 2020, Mr Weston applied for relief by way of interpleader in respect of the Bond.

The evidence

Mr Weston filed an affidavit, sworn 28 October 2020.
The primary affidavits relied on were sworn by the parties' legal representatives.
Perkins relied on two affidavits of Matthew John Lang, sworn 28 August 2020[1] and 29 January 2021.
[1] Filed in CCD 1 of 2020, proceedings for the enforcement of a determination under the Construction Contracts Act 2004 (WA).
Manda relied on affidavits of Callan Leslie Doran, sworn 23 December 2020, and Leith David Ayres, sworn 4 February 2021.[2]
[2] Michael Czarny, a director of Manda, made an affidavit on 10 February 2021 in which he affirms that he gave instructions referred to by Mr Doran and Mr Ayres in their affidavits.
Austpro filed no evidence.

The background facts

The facts were not disputed.
Perkins and Austpro are the parties to a building contract, made 22 October 2018, for a construction project related to the development of a property known as 21 Holman Street, Bunbury.
On 12 November 2018:
(1)Austpro, Manda and others entered into a written Loan Agreement;

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: [2021] WASC 84
Decision Date: 22 SEPTEMBER 2021

CaseChat Overview and Summary

The case of Weston v Perkins (WA) Pty Ltd involved the contractor, Weston, and the principal, Perkins (WA) Pty Ltd. Weston sought an order that the proceeds of the final payment held by Perkins (WA) Pty Ltd be paid to Weston, while Perkins (WA) Pty Ltd sought an order that the proceeds be paid to the lender. The case was heard in the Supreme Court of Western Australia.

The legal issues before the court included whether the contractor had a valid claim against the proceeds held by the principal and whether the principal was entitled to retain the proceeds for the benefit of the lender. The court needed to determine the priority of the claims and the appropriate distribution of the funds.

The court found that the contractor had a valid claim against the proceeds held by the principal, as the final payment was owed to the contractor. However, the court also found that the principal was entitled to retain the proceeds for the benefit of the lender, as the principal had a valid charge over the proceeds. The court held that the priority of the claims should be determined by the terms of the charge and the relevant legislation. The court further found that the appropriate distribution of the funds should be determined by the terms of the charge and the relevant legislation.

The court made an order that the proceeds of the final payment held by Perkins (WA) Pty Ltd be paid to the lender, subject to the rights of the contractor under the charge. The court also made an order that the contractor's claim against the proceeds be stayed pending the outcome of the adjudication between the contractor and the principal.

Orders