Winyu Pty Ltd v King - [2015] ACTSC 387

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…

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: [2015] ACTSC 387
Decision Date: 14 December 2015

CaseChat Overview and Summary

The parties to the dispute are Winyu Pty Ltd, the principal contractor, and King, the subcontractor. The dispute pertains to a claim for payment made under the Building and Construction Industry (Security of Payment) Act 2009 (ACT). The matter was heard in the Supreme Court of the Australian Capital Territory. The principal issue before the court was whether the adjudicator's decision, which found in favour of the subcontractor, was valid and enforceable. Specifically, the court had to determine if the adjudication decision was invalid because the payment claim was made outside the prescribed period stipulated in the Act.

The court examined whether the subcontractor's payment claim, which was submitted beyond the allowable timeframe, rendered the adjudicator's decision null and void. The primary legal issue was whether the adjudicator had the authority to make a decision on a claim that was not made within the statutory period. The court also considered whether there were any circumstances that could justify the late submission of the payment claim, such as the principle of estoppel or if the lateness was due to the principal contractor's conduct.

In addressing these issues, the court held that the adjudicator's decision was indeed invalid because the payment claim was not made within the prescribed period as required by the Act. The court found that there were no grounds to extend the time for making the claim, and no circumstances existed that could justify the late submission. Consequently, the court determined that the adjudicator's decision was not legally binding or enforceable. The court further clarified that the absence of any issue of principle meant that the matter could not be appealed on that basis. The court concluded that the adjudicator's decision was flawed due to the fundamental procedural error of the late submission of the payment claim.

The final orders of the court, as detailed in the judgment, reflect the court's determination that the adjudicator's decision was invalid. The court did not grant any relief to the subcontractor and dismissed the enforcement proceedings based on the adjudicator's decision. The court's judgment provides clarity on the strict compliance required with the statutory timelines for making payment claims under the Act, reinforcing the importance of adhering to the legislative framework governing the building and construction industry.

Orders

Orders of the court

See [53]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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