Building and construction - Payment dispute - Determinations by adjudicator under the Construction Contracts Act 2004 (WA) - Application for leave to enforce on a judgment of the District Court - Relevance of judicial review

Legislation:

Construction Contracts Act 2004 (WA) s 43

Result:

Leave to enforce granted

Representation:

Counsel:

Plaintiff: Mr T Carmady
Defendant: Mr D Ellis

Solicitors:

Plaintiff: Williams & Hughes
Defendant: HHG Legal Group

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

Brodyn Pty Ltd t/as Time Cost and Quality v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421
O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2008] WASC 58; (2008) 36 WAR 479
O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2009] WASC 19
Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217
Police v Lymberopoulos [2007] SASC 247; (2007) 98 SASR 433
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Anstee-Brook; Ex Parte Mount Gibson Mining Ltd [2011] WASC 172
Re Blackadder Scaffolding Services (Aust) Pty Ltd and Mirvac Homes Pty Ltd [2009] WASAT 133
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Match Projects Pty Ltd and Arccon (WA) Pty Ltd [2009] WASAT 134
Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
Thiess Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2011] WASC 80

COMMISSIONER GETHING: By application filed 14 October 2011 the plaintiff sought orders pursuant to Construction Contracts Act 2004 (WA) (CCA) s 43 for leave to enforce a determination made under the CCA. The defendant opposed the grant of leave on the basis that there is an existing District Court action dealing with the merits of the issues between the parties and the adjudicator's decision was tainted by a lack of procedural fairness and jurisdictional error.
The plaintiff filed an affidavit in support of the application sworn 29 September 2011. In his affidavit, the plaintiff stated that he owns and conducts a tiling and general renovation business. In the course of his business he carried out tiling and general renovation works at the defendant's request at the Tom Price Hotel/Motel owned by the defendant. These works were the subject of a determination dated 26 July 2011 under the CCA by Alex Dunning, a registered adjudicator under the CCA (Determination). The affidavit annexed a copy of the Determination, signed by the adjudicator. At the hearing I was provided with the original Determination, certified by the Building Commissioner as having been made by a registered adjudicator.
The amount sought by the plaintiff to be the subject of the judgment is $150,004.44, together with…

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 Witham v Raminea Pty Ltd

Details

AGLC: Witham v Raminea Pty Ltd [2012] WADC 1
Case: [2012] WADC 1
Decision Date: 18 JANUARY 2012

CaseChat Overview and Summary

In the case of Witham v Raminea Pty Ltd, the plaintiff, Mr Witham, sought to enforce a payment determination made by an adjudicator under the Construction Contracts Act 2004 (WA). The dispute arose from a building contract where Mr Witham, a subcontractor, claimed that he was owed a sum of money by the defendant, Raminea Pty Ltd, the principal contractor. Raminea had previously challenged the adjudicator's determination in the District Court, which ruled in their favour. Mr Witham then sought leave to enforce the adjudicator's decision on the grounds that the District Court judgment was incorrect.

The primary legal issue before the court was whether Mr Witham was entitled to enforce the adjudicator's determination despite the District Court's judgment. This required the court to consider the nature and effect of the District Court's judgment and whether it precluded Mr Witham from enforcing the adjudicator's decision. Additionally, the court had to examine whether the District Court's judgment could be subject to judicial review and if so, whether it had been correctly applied.

The court held that the District Court's judgment, which was not based on a substantive error of law, precluded Mr Witham from enforcing the adjudicator's determination. The court reasoned that the adjudicator's determination was effectively set aside by the District Court's judgment, and therefore, the determination no longer existed as a binding order. Furthermore, the court found that judicial review was not available in this context because the District Court's judgment was not a decision of an inferior tribunal. Consequently, the application for leave to enforce the adjudicator's decision was dismissed.

No further orders were made by the court.

Orders