ADMINISTRATIVE LAW – DECLARATIONS – EXCESS OR WANT OF
JURISDICTION – PARTICULAR INSTANCES OF JURISDICTIONAL ERROR
– where
the applicant and the first respondent were parties to construction contract
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – DECLARATIONS – EXCESS OR WANT OFJURISDICTION – PARTICULAR INSTANCES OF JURISDICTIONAL ERROR– wherethe applicant and the first respondent were parties to construction contract– where the first respondent serveda payment claim under the Buildingand Construction Industry Payments Act 2004 (Qld) (the Act) – wherethe second respondent made an adjudication decision under the Act – wherethe second respondentdetermined, as part of the adjudication, that theapplicant was not entitled to set-off an amount for liquidated damages –where the applicant alleges that this part of the second respondent’sdecision is affected by jurisdictional error –whether the secondrespondent’s decision that the applicant was not entitled to set-off anamount for liquidated damages waswithout foundation and illogical, with adeficient reasoning process – whether the second respondent’sdecision thatthe applicant was not entitled to set-off an amount for liquidated
damages involved a failure to provide reasons or adequate reasons
in accordance
with s 26(3)(b) of the Act – whether the second respondent’s
decision that the applicant was not entitled
to set-off an amount for liquidated
damages involved a denial, to the applicants, of natural justice
ADMINISTRATIVE LAW – DECLARATIONS – EXCESS OR WANT OF
JURISDICTION – PARTICULAR INSTANCES OF JURISDICTIONAL ERROR
– where
the applicant and the first respondent were parties to construction contract
– where the first respondent served
a payment claim under the Building
and Construction Industry Payments Act 2004 (Qld) (the Act) –
where the applicant served a payment schedule under the Act – where the
payment schedule did not raise
contractual time limitations as a basis for
withholding payment – where the second respondent did not consider
contractual
time limitations in the adjudication – whether, in not
considering contractual time limitations, the second respondent committed
jurisdictional error
Building and Construction Industry Payments Act
2004 (Qld), s 17, s 18, s 24, s 26(2)
Judicial Review Act 1991 (Qld), s 18(2)(b), Schedule 1, Part
2
Bauen Constructions v Westwood Interiors [2010] NSWSC 1359,
cited
Camden v McKenzie [2008] 1 Qd R 39
[2007] QCA 136,
cited
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78
Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd and Consolidated
Contracting Company Australia Pty Ltd &
Anor [2011] QSC 292,
cited
Queensland Bulk Water Supply Authority v McDonald Keen Group Pty Ltd
& Anor [2009] QSC 165, cited
Re Rich Rivers Pty Ltd and
Independent FM Radio Pty Ltd v Australian Broadcasting Tribunal & Goulburn
Valley Broadcasters Pty
Limited [1989] FCA 132, cited
Roseville Bridge
Mariner Pty Ltd v Bellingham Marine Australia Pty Ltd [2009] NSWSC 320,
cited
SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd
[2015] VSC 631, cited
Sierra Property Qld Pty Ltd v National
Construction Management Pty Ltd & Ors [2016] QSC 108, considered
State Water Corporation v Civil Team Engineering Pty Ltd [2013]
NSWSC 1879, considered
Judgment (79 paragraphs)
[1]
The applicant's originating application filed 20 September 2016 is dismissed.
I will hear the parties as to cost.
[2]
[3] Variations 11A, 58, 60, 61A, 67, 69 and 72. The reasons for the adjudicator's decision are Exhibit "ETB-6" to the affidavit of Eden Tyler Bird, filed 28 September 2016, CD 6 (the Bird affidavit). Variation 11A was not allowed: Exhibit "ETB-6" to the Bird affidavit, [119]-[126].
[3]
[4] Exhibit "ETB-1" to the Bird affidavit. The payment claim was served pursuant to s 17 of the Act
[4]
[5] Exhibit "ETB-2" to the Bird affidavit. The payment schedule was served pursuant to s 18 of the Act.
[5]
[6] The adjudication application was served pursuant to s 21 of the Act.
[6]
[7] The Bird affidavit, [4]; Exhibit "CS-1" to the affidavit of Christopher Scroope, filed 14 October 2016, CD8.
[7]
[8] Pursuant to the regime set out in s 24 of the Act.
[8]
[9] The Bird affidavit, [4]; Exhibit "ETB-5" to the Bird affidavit.
[11] Written Submissions for the Applicant, [11]. The proposition is implicitly accepted in the Outline of Submissions of the First Respondent; Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd[2011] QCA 22; [2012] 1 Qd R 525 at [6] per Margaret McMurdo P, at [33] per Chesterman JA and at [78] per White JA.
[11]
[12]Multiplex Constructions Pty Ltd v Luikens & Anor[2003] NSWSC 1140 at [92] per Palmer J; James Trowse Constructions Pty Ltd v ASAP Plasterers Pty Ltd[2011] QSC 145 at [57]- [59] per Atkinson J; BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd[2012] QSC 346 at [48] per Applegarth J; Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd[2012] QSC 373 at [61]- [62] per A Lyons J.
[12]
[13] Outline of Submissions for the First Respondent, [16].
[22] Cited with approval in Richard Crookes Constructions Pty Ltd v CES Projects (Aust) Pty Ltd[2016] NSWSC 1129 at [23] per McDougall J.
[21]
[23] See Re Rich Rivers Pty Ltd and Independent FM Radio Pty Ltd v Australian Broadcasting Tribunal & Goulburn Valley Broadcasters Pty Ltd[1989] FCA 132 at [49]- [50] per Davies J; Queensland Bulk Water Supply Authority v McDonald Keen Group Pty Ltd & Anor[2009] QSC 165 at [32]- [33] per P Lyons J, cited with approval in John Holland Pty Limited v TAC Pacific Pty Ltd & Ors[2009] QSC 205 at [21] per Applegarth.
[22]
[24] W195/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 396 at [34]- [36] per Lee J.
[30]John Holland Pty Limited v TAC Pacific Pty Ltd[2009] QSC 205; [2010] 1 Qd R 302, 321 at [57] per Applegarth J; Caltex Refineries (Qld) v Allstate Access (Australia) Pty Ltd[2014] QSC 223 at [38] per Philip McMurdo J.
[29]
[31] Exhibit "CS-1" to the affidavit of Christopher Scroope, filed 14 October 2016, CD8.
[54] Exhibit "ETB-6" to the Bird affidavit, pages 203-204, [119]-[126].
[51]
[55] Exhibit "ETB-3" to the Bird affidavit, page 34.
[52]
[56] Exhibit "ETB-4" to the Bird affidavit, pages 79-81.
[53]
[57] Exhibit "ETB-6" to the Bird affidavit, page 195, [86]-[87].
[54]
[58] Exhibit "ETB-6" to the Bird affidavit, page 229, [224].
[55]
[59] Outline of Submissions for the First Respondent, [18] citing Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd[2005] NSWSC 1129 at [34]- [49]; Brookhollow Pty Ltd v R & R Consultants Pty Ltd[2006] NSWSC 1 at [56]; McNab Developments (Qld) Pty Ltd v MAK Construction Services Pty Ltd[2015] 1 Qd R 250.
[68]John Holland Pty Limited v Roads & Traffic Authority (NSW)[2007] NSWCA 19 at [63] per Hodgson JA (with whom Beazley JA agreed) and at [71] per Basten JA.
John Holland Pty Limited v Roads & Traffic Authority (NSW)[2007] NSWCA 19, applied
John Holland Pty Limited v TAC Pacific Pty Ltd & Ors [2010] 1 Qd R 30; [2009] QSC 205, cited
Minister for Commerce v Contrax Plumbing (NSW) Pty Ltd[2005] NSWCA 142, cited
QCLNG Pipeline Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd and Consolidated Contracting Company Australia Pty Ltd & Anor[2011] QSC 292, cited
Queensland Bulk Water Supply Authority v McDonald Keen Group Pty Ltd & Anor[2009] QSC 165, cited
Re Rich Rivers Pty Ltd and Independent FM Radio Pty Ltd v Australian Broadcasting Tribunal & Goulburn Valley Broadcasters Pty Limited[1989] FCA 132, cited
Roseville Bridge Mariner Pty Ltd v Bellingham Marine Australia Pty Ltd[2009] NSWSC 320, cited
SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd[2015] VSC 631, cited
Sierra Property Qld Pty Ltd v National Construction Management Pty Ltd & Ors[2016] QSC 108, considered
State Water Corporation v Civil Team Engineering Pty Ltd[2013] NSWSC 1879, considered