Winyu Pty Ltd v King
[2015] ACTSC 387
•14 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Winyu Pty Ltd v King & Anor |
Citation: | [2015] ACTSC 387 |
Hearing Dates: | 17, 22 September 2015 |
DecisionDate: | 14 December 2015 |
Before: | Mossop AsJ |
Decision: | See [53] |
Catchwords: | JUDICIAL REVIEW – Adjudication decision under the Building and Construction Industry (Security of Payment) Act 2009 (ACT) – payment claim brought outside prescribed period – adjudication decision found invalid – no issue of principle |
Legislation Cited: | Building and Construction Industry (Security of Payment) Act 2009 (ACT) s 15 |
Cases Cited: | Bauen Constructions Pty Ltd v Sky General Services Pty Ltd [2012] NSWSC 1123 |
Parties: | Winyu Pty Ltd (Plaintiff) Navid King (First Defendant) Vince Gelonese (Second Defendant) |
Representation: | Counsel Mr D Richards (Plaintiff) Mr J Moffett (Second Defendant) |
| Solicitors Romano Satsia Kordis (Plaintiff) Baker Deane & Nutt (Second Defendant) | |
File Number: | SC 291 of 2015 |
Introduction
These proceedings relate to plumbing work undertaken at a building called Tamar House which is being redeveloped for the purposes of becoming part of licensed premises known as the Uni Pub. The second defendant was the claimant under the Building and Construction Industry (Security of Payment) Act 2009 (ACT) (SOP Act) and a determination in favour of the second defendant, against the plaintiff, was made by the first defendant, an adjudicator under that Act.
The plaintiff has sought a declaration that the decision of the first defendant is invalid on the basis that the determination of the first defendant was made without jurisdiction because the payment claim served by the second defendant did not relate to work carried out within the 12 months prior to the service of the claim. Under s 15(4) of the SOP Act a payment claim may only be given before, relevantly, “the end of the period of 12 months after the construction work to which the claim relates was last carried out or the related goods and services to which the claim relates were last supplied”.
The first defendant, the adjudicator, entered a submitting appearance.
The parties accepted that whether or not the first defendant had jurisdiction to make the determination depends upon whether or not the second defendant carried out work to which the payment claim related within the 12 month period. In other words, they accepted that there would be a jurisdictional error if the adjudicator had decided a claim relating to work done earlier than 12 months prior to the making of the claim: Bauen Constructions Pty Ltd v Sky General Services Pty Ltd [2012] NSWSC 1123 at [36]-[55]. The relevant payment claim (claim number 16) was dated 30 June 2015. The plaintiff contended that no work was done on the site by the second defendant after 14 May 2014 and the second defendant contended that work continued to be done up until September 2014. If the plaintiff is correct then the first defendant’s decision is invalid. If the second defendant is correct then the proceedings must be dismissed. The issue to be determined is therefore a relatively narrow question of fact, namely, whether the second defendant carried out work on the site after 30 June 2014.
The plaintiff read the following affidavits:
(a)Andrew Peter Satsia dated 14 August 2015;
(b)Stephen John Dawn dated 14 August 2015;
(c)Jure Praljak dated 27 August 2015 and 14 September 2015;
(d)David Andrew Fraser dated 27 August 2015.
The plaintiff also relied upon an expert report of James Osenton dated 27 August 2015.
Mr Dawn, Mr Praljak, Mr Fraser and Mr Osenton were cross-examined. Mr Satsia was not.
The second defendant relied upon the affidavits of Vince Gelonese dated 8 and 10 September 2015 and Christopher Lever dated 10 September 2015. Mr Gelonese was cross-examined, Mr Lever was not.
The payment claim
The second defendant, Mr Gelonese, is a plumber who trades as “VG Enterprises”. I will refer to him as Mr Gelonese. The contract between Mr Gelonese and the plaintiff arose out of an undated quotation given by Mr Gelonese to undertake works listed in that quotation for a sum of $283,716 plus GST. Save for the quotation itself, the terms of the contract do not appear to have been reduced to writing. Between 25 October 2011 and 30 June 2015 there were 16 claims for payment made by Mr Gelonese. In addition to the original scope of the contract there were also what were described in the evidence as a number of variations to the contract so as to increase the scope of work. At least in some cases, the additional work was the subject of a further quotation which the second defendant said was accepted orally. The total value of the contract (including variations) is identified in claim number 16 as $623,652.06 exclusive of GST which leads to an amount of $686,017.26 inclusive of GST. The total amount identified by Mr Gelonese as having been paid was $483,000. The last amount paid by the plaintiff was paid in September 2013. Unusually for a case like this, there is no document signed by a representative of the plaintiff indicating acceptance of the quotation, identifying the terms of the contract or indicating assent to any of the variations alleged by the second defendant.
It is necessary to refer to some aspects of the claims for payment made under the contract since 2014. The payment claims identify as percentages the extent of work completed. That is done both in relation to particular numbered variations to the contract as well as in relation to the original scope of the contract. For present purposes it is only necessary to refer to the percentage completion of the original scope of the contract.
Claim number 13 is dated 24 February 2014. It disclosed that a total of 71.1% of the works were completed. Claim number 14 is dated 23 April 2014. It identified 93.0% of the work having been completed. Claim number 15 is dated 30 August 2014. It identified 98.0% of the work having been completed.
Claim number 16 is dated 30 June 2015. It states that it is a payment claim made under the SOP Act. It identifies 99.5% of the work having been completed. Tax invoice 421, also dated 30 June 2015, makes a claim under the SOP Act based on claim number 16. The amount of the claim is $195,518.25 inclusive of GST.
It is therefore worth noting that an additional 5.0% of the work under the contract is alleged to have been completed between claim number 14 and claim number 15. An additional 1.5% of the work is alleged to have been completed between claim number 15 and claim number 16.
Chronology
In order to understand the balance of the reasons it is useful to describe relevant events in a chronological fashion, including the making of the claims for payment to which I have referred above.
Although the quotation said to have been accepted and given rise to the contract is undated, the evidence is that in about October 2011 it was accepted orally. The first payment was made by the plaintiff in relation to works the subject of the contract in November 2011. It is not necessary to describe the progress of the work or the various claims and payments made prior to February 2014.
On 11 February 2014 the solicitors for the plaintiff wrote to the second defendant asserting substantial delays in the delivery of services pursuant to the agreement for excavation, hydraulic and plumbing work. The letter provided:
We formally place you on notice of your breach of contractual duties caused by your delay in performing the services in the Agreement and request immediate rectification of the same within 14 days.
Should full rectification of your delays not occur within 14 days, our client will hereby terminate the Agreement with you at which time our client will take action for the remedy of you [sic] breach and will pursue their legal rights against you for the recovery of their financial loss arising from your conduct.
The evidence of Mr Satsia and of Mr Dawn was that the contract with the second defendant was terminated orally by Michael Kouper, the director of the plaintiff. That evidence was hearsay. However it was not objected to. The evidence of Mr Satsia was based on the instructions of Mr Kouper, who did not give evidence. The evidence of Mr Dawn, whose company is the licensee of the Uni Pub and who described himself in his affidavit as “project manager” for the construction works, was based upon what he was told by Mr Kouper. However Mr Dawn also gave evidence, consistent with his contemporaneous understanding that termination had occurred, that he had appointed WT Partnership, a firm of quantity surveyors, to provide a quantity surveyor’s report for the purpose of estimating the value of the remaining works to be carried out to complete the installation of the hydraulic services that had not been completed by the second defendant.
In March 2014 WT Partnership was engaged by the plaintiff to provide an estimate of the value of remaining works to be carried out in order to complete the installation of hydraulic services at the premises. Mr Osenton, a quantity surveyor, prepared the report. He inspected the site with a colleague on 19 March 2014. The estimate prepared as part of that report was in fact used as the basis for a contract with a new contractor. Mr Osenton’s report recorded: “It is also our understanding that the Client terminated the contract recently and that the contractor had not finished the full scope of works”. This notation is significant in that it is a contemporaneous record, unaffected by the circumstances of the present case, of, at the very least, the plaintiff’s state of mind as at March 2014. The report identified that the estimated cost for carrying out the completion of the hydraulic services installation was $86,340 excluding GST. It provided a detailed breakdown of that estimate as an appendix.
Claim number 14 was made on 23 April 2014.
Mr Dawn gave evidence that the last work on the site undertaken by the second defendant occurred in March 2014 and that the second defendant had not done work or provided services since March 2014. The evidence of Mr Praljak, who was employed by the plaintiff to manage the site, was that the last work undertaken by a representative of the second defendant was carried out on the site on 14 May 2014. Mr Praljak’s job was to look after the site and let contractors onto it. He did not supervise the contractors’ work but rather was responsible for controlling access. He was employed on a full-time basis and was only absent from the site for short periods. He identified 14 May 2014 by reference to a note in his diary which indicated that a plumber had attended on that day. He recalled that the worker was installing toilet pans at the premises and that the worker had told him that he was just about to finish the whole lot that day. Mr Praljak’s diary was not a formal site diary and did not appear to have been kept in any methodical way.
Following the completion of the report of Mr Osenton, Mr Fraser, a plumber, through his company, DFPG Pty Ltd, contracted with the plaintiff to complete the hydraulic services works. Mr Fraser’s evidence was that his first day on site was 16 May 2014. A “Task Sheet” which outlined the work done on the site, by whom it was done and when it was done showed the first day upon which an employee or subcontractor of DFPG Pty Ltd carried out work on the site was 16 May 2014 and the first day upon which equipment was purchased for the job was 21 May 2014. Mr Fraser said that since commencing work on the site he had not seen any evidence of any other plumber, plumbing or hydraulic works or materials having been present, performed or supplied by any person other than himself or his company. In cross-examination, he accepted that he was not on site every day and that he obviously did not see activities on site when he was not there.
Claim 15 is dated 30 August 2014. Mr Dawn said he had not seen it prior to seeing it as part of the second defendant’s adjudication application.
Mr Gelonese’s evidence was that he performed work and provided goods and services to the plaintiff after March 2014. He described that work as follows:
In particular, I attended and arranged for my employees to attend the work site known as the Uni Pub on 2 London Circuit, Canberra City, in the Australian Capital Territory, and provided the Plaintiff with excavation, plumbing and hydraulics installation services, and plumbing, ceramic and other fixtures for installation, after March 2014 and until June 2015.
In cross-examination the following questions and answers were asked and given about this evidence:
So, that’s your evidence that you were providing, up until June 2015, work at that site?---Correct.
So, tell his Honour what work you performed in June 2015 at the site?---Well, there was a range of works; installing toilets, thermostatic mixing valves, tempering valves, just general works, set up of the hot water units up on the roof site and other bits and pieces. If you asked me specifically what I did on each day I can’t really answer that because it was a while ago.
Notwithstanding the terms of his affidavit and his answers to the above questions, Mr Gelonese did not in fact contend that work continued up until June 2015. Instead, based on weekly timesheets, he identified the last day of work as 24 September 2014. However the significance of the answers set out above is that even if it is understood as referring to any period after March or May 2014 it is evidence that is almost as generic as is possible in the circumstances as to the work which was carried out. There was no other evidence which would describe with any degree of precision what work was said to have been undertaken in the period after March or May 2014 and, in particular, after 30 June 2014.
Mr Gelonese exhibited to his affidavit of 8 September 2015 timesheets which he said showed attendances at the site by himself and his employees. He gave some detailed evidence about the method by which he had personally produced those timesheets. I will return to the timesheets in more detail below. Later in his affidavit he said that he personally attended the premises:
42.... to undertake excavation, plumbing and hydraulics installation services in respect of an extension and refurbishment of that building, as agreed with the Plaintiff.
43.During and subsequent to March 2014, I also caused my employees to attend these premises to undertake those services as agreed with the Plaintiff.
44.During and subsequent to March 2014, I left materials including water pumps, valves, fittings, shovels, picks, tools, toilet bowls, cisterns, tap [ware], sinks and joinery at the premises.
45.During and subsequent to March 2014, I did not see any other plumbers or hydraulics service providers at the premises.
46.That being the case, the premises were extensive, with work undertaken on multiple storeys simultaneously.
He said he had never met Mr Fraser and had not seen him at the premises. He had seen Mr Praljak on the site on many occasions.
By originating claim dated 20 February 2015 and filed in the Magistrates Court the second defendant claimed an amount of $72,647.70. This was alleged to be the sum of amounts owed pursuant to invoices 297 and 298 issued by the second defendant. The amounts claimed on those invoices appear to relate, at least in part, to work that was the subject of the second defendant’s eighth claim for payment (which appears to identify the same work as variations 5 and 6) although the amounts claimed differ slightly. The second defendant eighth claim for payment was made on 20 December 2012. There was no clear explanation in the evidence as to the reasons for the differences in the amounts claimed or how the content of invoice 298 related to amounts claimed in the numbered claims for payment.
On 30 June 2015 the second defendant made claim number 16.
A payment schedule was given on 8 July 2015 identifying the amount owed as nil.
On 9 July 2015 the plaintiff’s solicitors wrote again to the second defendant asserting that the claim was not a valid one under the SOP Act because it was not made within the period required by s 15(4) of that Act. The letter also noted the inconsistency between the amount claimed in the Magistrates Court proceedings of $72,647.70 and the amount claimed in the payment claim of $195,518.25.
On 24 July 2015 the adjudicator accepted appointment as adjudicator.
The adjudication response was provided to the adjudicator on 24 July 2015. In it the plaintiff asserted that it had been in excess of 18 months since the work to which the claim related was last carried out or any goods or services supplied.
The adjudication decision was made on 7 August 2015.
It is next necessary to deal with three discrete aspects of the evidence:
(a)the expert report of Mr Osenton relating to the work done on the site after March 2014;
(b)the second defendant’s timesheets; and
(c)the evidence relating to Mr Gelonese’s meeting with and secret recording of a conversation with Mr Praljak.
The second report of Mr Osenton
I have referred to the March 2014 report of Mr Osenton of WT Partnership. For the purposes of these proceedings Mr Osenton produced a second report in August 2015 to which his first report was an annexure. For the purposes of his August 2015 report Mr Osenton was asked to identify the hydraulic works that had been performed since March 2014 and, what, if any, of those works were conducted by the current plumbing contractor DFPG Pty Ltd. He visited the site on 20 August 2015. He visited again on 24 August 2015 in the company of Mr Fraser of DFPG Pty Ltd. He found that $48,805 worth of work remained to be completed. He identified that a total of $37,535 worth of work had been completed between March 2014 and August 2015 and that $33,860 of that work had been completed by DFPG Pty Ltd. The conclusion to be drawn from this was that some $3,675 (exclusive of GST) worth of work had been completed by some entity other than DFPG Pty Ltd. Mr Osenton accepted that his conclusions were dependent upon the accuracy of the instructions that he received from Mr Fraser as to the nature of the work that he had completed in the period since his engagement up until August 2015.
The evidence of the second defendant
Exhibited to Mr Gelonese’s affidavit dated 8 September 2015 was a collection of weekly timesheets prepared for the purposes of his business. Those weekly timesheets identify, for each day of the week, which employee of the second defendant was working at which site and for how long. For each day the timesheets identify the employee, a job number, a number of hours and provide a space for a signature. The signature appears to be the signature or initials of the person preparing the timesheets. There is a key which identifies the relevant jobs by reference to a number. For the job at the Uni Pub the job number is 46. The timesheets in evidence span the period from July 2011 until August 2015. They appear to be a continuous series. Notwithstanding the affidavit evidence that Mr Gelonese himself prepared the timesheets personally, in oral evidence he identified that only some of them were prepared by him and some others prepared by his wife. By reference to the job number 46 it is possible to identify the time spent by employees of the second defendant at the Uni Pub job. The timesheets show work on the site up until 24 September 2014. In the period from 14 May 2014, the last day when Mr Praljak identified an employee of the second defendant on site, to 24 September 2014, the last day that the timesheets show the second defendant or an employee of the second defendant on site, the timesheets record that the second defendant and his employees spent 528 hours on the site. An additional 24 hours were spent in April 2014 and 40 hours in March 2014. If the contract was terminated sometime in March 2014 then the records indicate that there are some 552 hours of work done by the second defendant or his employees after the termination of the contract. They show 360 hours of work carried out after 30 June 2014. In the period from March 2014 until the last record showing work on the Uni Pub in September 2014, none of the timesheets showing work on job number 46 appear to have been prepared by the second defendant. While many of the timesheets during this period were prepared by him those which indicate work on job number 46 appear to be in the handwriting that he identified as his wife’s.
Also in evidence as part of the adjudication application were tax invoices which were described in the adjudication application as “machine hire dockets” and described in the oral evidence of Mr Gelonese as “day dockets”. These documents record the client as being Steve Dawn at the Uni Pub. They contain a job description and record the nature of the work undertaken and equipment used, the time for which equipment was used and the date. While there is provision for a client signature, none of them were signed or otherwise marked so as to indicate any acceptance by the plaintiff. They cover the period 30 September 2011 through to 19 December 2012, well before the period where the performance of work on the site is contested. Mr Gelonese was cross-examined on inconsistencies between these dockets and the timesheets records. Although such differences did exist, given that the dockets covered a period not directly relevant to the current issue, I do not consider that the content of those dockets is of significance for the resolution of this case.
The tape recording
Mr Gelonese attended Mr Praljak’s house, uninvited, on two occasions in August or September 2015. Mr Praljak’s evidence was that on the first occasion, approximately four weeks before his affidavit of 14 September 2015, the second defendant had spent about 20 minutes at his house. The conversation was mainly about money that the second defendant said he was owed and Mr Praljak said that he did not know anything about that issue. The second defendant also asked about the progress of the other plumber on the site. On the next occasion, about two weeks later, the second defendant came to his house unannounced on either a Saturday or Sunday. He sat with Mr Praljak in the lounge room and Mr Praljak offered him a beer. The second defendant complained and discussed money that he said he was owed by Mr Kouper and Mr Dawn. Mr Praljak said he knew nothing about whether or not money was owed. Towards the end of the conversation the second defendant asked Mr Praljak to sign some dockets although he did not show him any documents that he wished to have signed. Mr Praljak declined to do so. Also towards the end of the conversation the second defendant, unknown to Mr Praljak, recorded part of the conversation on his mobile phone. A transcript of that recording was in evidence as an exhibit to the affidavit of Mr Lever. It included some discussion of whether the evidence of Mr Dawn, that the second defendant had done no work on the site after March 2014, was accurate. In the transcript of the conversation Mr Praljak appears to indicate his disagreement with the proposition that no work was done after March 2014. That is consistent with his evidence, which he confirmed after being made aware of the secret recording of the conversation, that work was done up until 14 May 2014 but not thereafter.
Ultimately, although the making by Mr Gelonese of the recording of part of the conversation with Mr Praljak was unusual, the content of the conversation that was recorded was not of significance for the resolution of the issue in this case.
Consideration and conclusion
In favour of a finding that Mr Gelonese continued to do work on the site after 14 May 2014, including work after 30 June 2014, is the evidence of Mr Gelonese. That evidence is evidence given on affirmation upon which he was cross-examined. Notwithstanding some significant discrepancies, it is also evidence which is generally consistent with, and corroborated by, the timesheet records which were in evidence. Those records show an apparently consistent set of records from 2011 which demonstrate substantial amounts of work done over the period after 14 May 2014. The oddities of those records are that, for reasons which were not explained and contrary to the affidavit of 8 September 2015 of Mr Gelonese, each of the timesheets for the relevant period showing work at job number 46 was not prepared by Mr Gelonese. Those timesheets show 360 hours of work performed after 30 June 2014 by the second defendant and two of his employees.
There is, however, evidence of other witnesses and other considerations which tend against the proposition that the second defendant did work after 14 May 2014 and beyond 30 June 2014.
First, the evidence of Mr Praljak was that the last occasion on which he saw the second defendant or any representative of the second defendant on site was 14 May 2014. While the method of recording dates and activities in Mr Praljak’s diary was certainly more ad hoc than comprehensive, Mr Praljak’s evidence was given in a straightforward manner and, in my view, was given honestly. I consider that it is unlikely that his evidence is unreliable to the extent that he failed to notice some 528 hours of work undertaken by the second defendant or his employees on the site after the date when he said the last work was done.
Second, the evidence of Mr Fraser was likely to be reliable. His honesty or reliability was not undermined in cross-examination. He was a contractor who had no apparent stake in the outcome of the proceedings. He gave evidence in an unaffected way. The evidence that he gave was subject to the caveat that he was not there all the time and obviously did not see who was on site when he was not there. However it appears to be unlikely that the second defendant or his representatives attended the site only when he was not there if the time during which those persons were said to be on site was of the order of 528 hours. It is particularly important that Mr Fraser’s evidence was that he did not detect any further plumbing or hydraulic work having been done on the site during the period when he had control of the job.
Third, the other point about Mr Fraser’s evidence is that the work that he was contracted to carry out appears to be the same work that the second defendant was contracted to carry out. The second defendant’s payment claims indicate that on 23 April 2014 93.0% of the contracted works were completed and on 30 June 2015 99.5% of the works were completed. That is the same period during which DFPG Pty Ltd was carrying out substantially the same work. There was no explanation as to how both contractors could be doing the same work at the same time.
Fourth, the evidence of Mr Osenton was consistent with only $3,675 worth of work having been done between his inspections in March 2014 and August 2015 that was not done by DFPG Pty Ltd. That evidence does not, of course, rule out the possibility of some work having been done after 30 June 2014. However it is inconsistent with the proposition that 528 hours of work had been done by the second defendant after 14 May 2014 or 360 hours after 30 June 2014. It is consistent with some work having been done in the period between 19 March 2014, the date of Mr Osenton’s first inspection, and 14 May 2014, when Mr Praljak last saw work being done on behalf of Mr Gelonese.
Fifth, the lack of specificity in the evidence of the second defendant makes it more difficult to accept that he and his employees had spent 528 hours doing additional work on the site. I have set out Mr Gelonese’s description of the work carried out above: see [23]-[24]. As will be apparent, it is at a very high level of generality. Had such work been carried out it should have been possible for the person who carried it out to identify with some precision the stage that the works had reached and what work was physically carried out during the relevant period and, in particular, after 30 June 2014. Further, it is likely that if 528 hours of work had been carried out there would be physical items which had been purchased for installation on the site of which there might be some record. An example of such records is provided by the records of DFPG Pty Ltd annexed to the affidavit of Mr Dawn, which disclose items purchased for use on the Uni Pub job. Similarly, there was no corroboration of the second defendant’s evidence about that work from any other witness. The fact that there was only the vaguest description of the work being carried out and no records other than the timesheets that would corroborate that work make it more difficult to accept Mr Gelonese’s evidence about the work done.
Sixth, although the evidence about termination of the contract was limited, that evidence makes it less likely that Mr Gelonese continued to work on the job after 30 June 2014. There was no direct evidence from Mr Kouper, the person whom Mr Dawn believed had effected the termination, as to what had been done. However the hearsay statement of Mr Dawn was admitted into evidence and is consistent with the contemporaneous instructions given to Mr Osenton and the conduct of the plaintiff in engaging an alternative contractor. In those circumstances it appears to me to be unlikely that Mr Gelonese was completely unaware of the position of the plaintiff that the contract had been terminated and in those circumstances unlikely that he would then have continued to perform substantial amounts of work on the job. The likelihood of Mr Gelonese being aware of the plaintiff’s position is reinforced by the letter of 11 February 2014 and the absence of any payment made by the plaintiff to the second defendant since September 2013. Further, it is also reinforced by the absence of any evidence of any interactions between Mr Gelonese and any representative of the plaintiff for the purposes of continuing work under the contract in the period after May 2014.
Seventh, two other matters appear to me to reflect on the reliability of the second defendant’s evidence. First, there is an inconsistency between commencing proceedings in the Magistrates Court for an amount of $72,647.70 and then subsequently making a claim for $195,518.25. The evidence was not clear precisely how the $72,647.70 claim related to the $195,518.25 claim. However it would seem to me to be unusual for a party having a substantial claim that was then outstanding to commence proceedings to recover either part of it or a related amount and yet not pursue the whole of the amount. While Mr Gelonese gave an explanation for that course it did not appear to me to be a persuasive one. The other matter is the attempts to get Mr Praljak to sign dockets during the pendency of the proceedings and the obtaining of the secretly recorded conversation with Mr Praljak. Although, having regard to the inconclusive content of the recorded portion of the conversation, it is not of great substantive significance, the conduct of Mr Gelonese in visiting, uninvited, a witness in the case, asking for dockets to be signed and then secretly recording the conversation does appear to be unusual conduct for a party to proceedings.
Having regard to all of these matters I consider that the evidence of Mr Praljak and Mr Fraser is likely to be accurate insofar as each records that the second defendant or his employees did not attend the site, perform any work on site or supply goods to the site after 14 May 2014. Notwithstanding the existence of the timesheet records I prefer the evidence of Mr Praljak and Mr Fraser to the evidence of the second defendant. That necessarily involves finding that the timesheets for the period from 14 May 2014 to 24 September 2014 do not accurately record the time spent by Mr Gelonese and his employees on the site.
I am therefore satisfied that the second defendant did not undertake work pursuant to the building contract or supply goods under that contract on or after 30 June 2014. As a consequence the requirement in s 15(4) of the SOP Act that the works or related goods and services to which the claim relates must have been carried out or supplied within one year of the payment claim is not satisfied and the adjudicator did not have jurisdiction under the SOP Act.
The only relief claimed is declaratory. The plaintiff claimed a declaration that the payment claim was invalid, as it was given after the period stipulated in s 15 of the SOP Act, and a declaration that the adjudication decision was invalid. In the light of my conclusions there is no reason why such relief should not be granted although I have adjusted slightly the form of the declarations.
Orders
The orders of the Court are:
1The Court declares that the payment claim of the second defendant dated 30 June 2015 which was the subject of the adjudication decision of the first defendant dated 7 August 2015 was not a payment claim within the meaning of the Building and Construction Industry (Security of Payment) Act 2009 (ACT) because it was given outside the period identified in s 15(4) of that Act.
2The Court declares that the adjudication decision of the first defendant dated 7 August 2015 is invalid.
3The proceedings are listed for any argument in relation to costs on 18 December 2015 at 9.30 am.
| I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 14 December 2015 |
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