CC No 1 v Reed

Supreme Court of NSW|2010-05-06

DECISION : I dismiss the proceedings with costs and dissolve the existing interlocutory injunction.

CATCHWORDS : Contracts. Building, engineering and related contracts. Progress claims under the Building and Construction Industry Security of Payment Act 1999 - Claim that later claim was an abuse as it reagitated matters the subject of earlier claims. - No adjudication of earlier claims. - Held in the circumstances no abuse. - Proceedings dismissed.

PARTIES : CC No 1 Pty Ltd & Anor v Reed Constructions Australia Pty Ltd & Anor

COUNSEL : Mr G Inatey SC with Mr D Miller for plaintiff Mr B Coles QC with Mr B DeBuse for defendant

SOLICITORS : Minter Ellison Lawyers for plaintiff HWL Ebsworth Lawyers for defendant

1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION IN THE SUPREME COURT OF NEW SOUTH WALE EQUITY DIVISION TECHNOLOGY AND CONSTRUCTION LIST ASSOCIATE JUSTICE MACREADY Thursday 6 May 2010

2010 / 81752 CC No 1 Pty Ltd & Anor v Reed Constructions Pty Ltd 1 HIS HONOUR: This is the final hearing of the plaintiffs' suit to restrain the adjudication process initiated by the first defendant's adjudication application dated 29 March 2010 concerning the first defendant's payment claim dated 1 March 2010. The second defendant is the appointed adjudicator. At present there are injunctions in place to restrain the second defendant from delivering his determination until 5pm on 30 April 2010. A judge of the Court has referred the matter to me for hearing.

Background 2 The claims concern construction works being undertaken by the first defendant, as contractor, for the plaintiffs, as principal, at the Chatswood Chase retail redevelopment in Sydney pursuant to a contract dated 24 January 2008. The contract was in the form of AS4300. 3 The contract progressed with progress claims numbers 1 to 20 being dealt with under the contractual arrangements between the parties. These claims were made between 24 January 2008 and 28 August 2009. None of these progress claims were submitted as payment claims under the Building and Construction Industry Security of Payment Act 1999 ("the Act"). 4 On 28 September 2009 payment claim 21 for the period the 'week ending 28th September 2009' which was submitted under the Act was given to the plaintiff. A payment schedule was submitted out-of-time on 20 October 2009. The payment schedule suggested that the amount payable should be $1,957.954. The actual amount claimed in the September payment claim was $3,664,670.55. On 20 October 2009 the plaintiff paid the amount of $1,957,954 after the defendant raised an invoice for that amount. 5 On 13 November 2009 a further payment claim was submitted. This is described in the evidence as the October payment claim and was for an amount $5,126,297.59. On 27 November 2009 a payment schedule was served within time in respect of the October payment claim. The scheduled amount was $3,262,860.26. A tax invoice was issued by the defendant for that amount and the amount was paid to the defendant the same day. 6 On 1 March 2010 payment claim 24, which was described in the evidence as the February payment claim was submitted. This is the one in respect of which the plaintiff seeks to restrain the adjudication process. It was for an amount of $8,532.833. 7 On 15 March 2010 a payment schedule was issued with respect to the February payment claim which showed a scheduled amount 'nil'. The payment schedule indicated an amount in excess of $19m owing by the defendant to the plaintiffs. On 16 March 2010 the defendant commenced proceedings 67244/2010 seeking judgment pursuant to the Act in respect of alleged unpaid amounts with respect to the September payment claim. On 29 March 2010 the defendant lodged an adjudication application with the respect to the February payment claim. 8 On 1 April 2010 these proceedings were commenced and on 6 April 2010 an interlocutory injunction was granted to restrain the proceedings under that adjudication application. By way of precaution on 7 April 2010 the plaintiff submitted an adjudication response with respect to the February payment claim. 9 Although the September and October payment claims claimed amounts in respect of the main contract, the work was virtually completed at that stage. The main dispute centres on the variation claims that were included in those two payment claims. By the September payment claim variations claims numbered 192 and by the time of the October payment claim the number of variations had risen to 218. In the February payment claim the total number of variation claims were 235. 10 The dispute centres on the February payment claim that claimed preliminaries in respect of all the earlier variation claims. It was said that by omission a claim for preliminaries had not been made with respect to those claims. There was some discussion about this aspect of the matter in November 2009 when the November claim was lodged but that claim was subsequently withdrawn. A table showing the extent of the dispute which is reflected in the February payment claim appears at Table A of Mr Hughes' affidavit of 16 April 2010 as follows:

A1 Contract work $33,116 A2 Provisional Sums $214,616 Additional Preliminaries calculated as the further costs of performing Variations:

(i) relating to variations the subject of A3 $999,169 the September claim ($449,907)

(ii) relating to all other variations ($549,262) Variation claims (pending, disputed, approved) rolled over from previous payment claims: B $3,853,799 (i) which were the subject of the

September claim ($3,364,671) (ii) all other variations ($489,128.46) C Acceleration (V226) $1,138,701 D Work out of hours (V228) $356,058 E Interest (V229) $605,529 Additional Overhead & Profit on preliminaries, V226 and 228 F (i) relating to variations the subject of the $299,846 September claim ($44,991) (ii) all other additional overheads and profit ($254,855) An amount previously deducted from G monies otherwise assessed as owing but $1,032,000 claimed to reflect setoffs or costs of defects described as Negative variations (NV1-5) Total (excl GST) 8,532,828

11 In respect of the above amount of $3,364,671, which is the unpaid amount under the September claim, the defendant has requested the adjudicator not to deal with this aspect as the "amount" is now the subject of the other Supreme Court proceedings. As the plaintiffs point out this does not mean that if the adjudicator has to look at the variations for the purpose of investigating the claim for preliminaries, he will not have to consider the factual background of the claim for each variation. In many cases the claim for preliminaries arises because of matters such the need to work at night. Plaintiffs' argument 12 The plaintiffs seek to restrain the prosecution of the adjudication of the February payment claim as an abuse of the processes of the Act as it is said it contains repetitious claims. It is said that all of the variation claims the subject of both the September payment claim and the October payment claim (as well as other variation claims that have been claimed, agreed and paid in accordance with the Contract) are repetitiously claimed by the defendant in its February payment claim. Those claims however differ in amount and it is submitted that the defendant seeks now to ascribe a different value to each such claim. Such higher amounts are said by the defendant to be payable on account of those alleged variations when components of 'cost' are added on account of preliminaries. 13 The plaintiff's claim of an abuse is put in the sense explained by Allsop P in Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69; (2009) 74 NSWLR 190 ('Dualcorp') as flowing from the construction of the Act. The other judges of the court, Macfarlane JA and Handley AJA, who determined the matter on the basis of an abuse arising from estoppel, did not follow his Honour's analysis. In Dualcorp and several first instance cases, which have followed it, there was an adjudication application dealt with by an adjudicator followed by a latter claim or adjudication application containing a repetition of matters already decided in the earlier adjudication. In this case there has been no earlier adjudication and hence the matter cannot be dealt with in the way that Macfarlane JA and Handley AJA approached the matter in Dualcorp. 14 It is instructive to see how the president approached the matter in Dualcorp. He agreed with McFarlane JA's description of the factual background which involved as I have said an earlier claim the subject of adjudication. That description was as follows: "20 Evidence called by Remo indicated that Dualcorp undertook the works and left the site in or about November 2007, with no further work having been completed by Dualcorp on site after that time. The proceedings were conducted at first instance on the basis that Dualcorp had substantially completed the work required under the subcontract. 21 On or about 29 January 2008, Dualcorp served a payment claim under the Act (the "January Claim"). The claim attached six invoices (numbered 2129, 2130, 2131, 2132, 2136 and 2137) totalling $743,612.50. 22 On 11 February 2008, Remo served a Payment Schedule pursuant to s 14 of the Act (a "Payment Schedule") which disputed the bulk of the claim in respect of the first four invoices but, save for an immaterial amount, conceded the claims in respect of invoices 2136 and 2137. 23 Pursuant to the provisions of the Act, Dualcorp applied for adjudication of its claim in respect of the first four invoices. Mr Anthony Makin was appointed as adjudicator. 24 On 11 March 2008, Mr Makin determined that Dualcorp was entitled to an amount of $75,509.43 (which included an amount of $36,834.88 which had been accepted by Remo in its Payment Schedule). This was considerably less than the total of $659,619.65 of the four invoices the subject of the adjudication. 25 Pursuant to the provisions of the Act, Dualcorp sought and obtained judgment in the District Court for $75,509.43 based upon a certificate of the adjudicator. It was agreed between the parties that judgment was entered on 3 April 2008. 26 Being dissatisfied with the amount to which Mr Makin determined it was entitled, Dualcorp, on or about 3 March 2008, made a further claim under the Act ("the March Claim"). The claim was based upon, and attached, the same six invoices the subject of the January Claim. The total of the March Claim was accordingly the same as that of the January Claim although for an unexplained reason there was a one cent difference. Neither party sought to attribute significance to that difference. 27 As a result of Remo not serving a Payment Schedule in relation to this claim, Dualcorp commenced proceedings in the District Court for the amount of the March Claim pursuant to the provisions of s 15 of the Act. The present application for leave to appeal is brought from the decision of Quirk DCJ declining to enter summary judgment in favour of Dualcorp in the full amount claimed by it. " 15 The president commenced his judgment with the statement: "2 I agree with Macfarlan JA that the Act was not intended to permit the repetitious use of the adjudication process to require an adjudicator or successive adjudicators to execute the same statutory task in respect of the same claim on successive occasions. A party in the position of the applicant (Dualcorp), here, should not be able to re-ignite the adjudication process at will in order to have a second or third or fourth go at the process provided by the Act merely because it is dissatisfied with the result of the first adjudication." 16 He continued with a reference to the statutory provisions and the contractual provisions that touched on the reference date. He then said: "8 As can be seen from the Act, s 13(5) a claimant is limited to one payment claim in respect of each reference date. Section 13(6) permits, however, inclusion in another payment claim (necessarily by reference to another reference date) of an amount that has been the subject of a previous claim. Amongst other usual and uncontroversial examples, this permits the submission of cumulative payment claims by reference to later reference dates, which include an amount the subject of a previous claim. In such circumstances, if there has been an adjudication, s 22(4) will apply to require the same value to be given to such work, subject to the qualification in that subsection." 17 He then referred to the facts and determined that the first and second claims were in respect of the same reference date and said: "13 I see no warrant under either the contract or the Act, s 8 for permitting a party in Dualcorp's position to create fresh reference dates by lodging the same claim for the same completed works in successive payment claims. That is not the intended operation of the last phrase of s 8(2)(b) ("and the last day of each subsequent named month"). 14 Here, the work had been done; Dualcorp, the subcontractor, had left the site; it claimed payment by six invoices; six weeks later it repeated that claim by reference to the same invoices and, in my view, in respect of the same reference date. Dualcorp was prevented from serving the second payment claim. The terms of s 13(5) are a prohibition. The words "cannot serve more than one payment claim" are a sufficiently clear statutory indication that a document purporting to be a payment claim that is in respect of the same reference date as a previous claim is not a payment claim under the Act and does not attract the statutory regime of the Act. 15 For these reasons, Dualcorp was not entitled to proceed to judgment on a claim founded on the operation of the Act premised on the second payment claim of 3 March 2008 being a payment claim under the Act. 16 As to s 22(4) I agree with Macfarlan JA's approval of the approach of McDougall J to this section. I also agree that the Act as a whole generally manifests an intention to prevent repetitious reagitation of the same issues. The primary mechanism for the effectuation of that intention would appear to be ss 13(5) and 22(4). The former is sufficient to deal with the present controversy. I would leave to another occasion, should it be necessary, the consideration of principles of estoppel to prevent any apparently abusive operation of the Act not specifically covered by ss 13(5) and 22(4)." 18 Although the President does not refer to the previous adjudication process in his last mentioned comments it is plain from what he has said in paragraph 2 that what he has in mind is the repetitious use of the "adjudication process". This is also apparent from his concluding remarks in paragraph 16. 19 What we have in the present case is different from what the President was considering. Here the defendant has used part of the process of the Act but not that part which involves adjudication. In respect of the September payment claim it has utilised s 15(2)(a)(i) of the Act to sue the plaintiff for the unpaid part of the payment claim. In respect of the October payment claim where there was payment of the scheduled amount it has not under s 17 made an adjudication application. Thus it is said there was an acceptance of the scheduled amount. The plaintiff submits that in this way the defendant has "used the processes of the Act" in respect of the relevant claims. 20 It is clear that in the October payment claim a large number of variations in that claim were 100% complete. According to the plaintiff's submission that should mean that that is the end of a variation claim that was not disputed by the payment schedule. In support of their claim in respect of the September progress claim similarly a large number of the variations there referred to were also 100% complete. In the circumstances concerning the September payment claim the Act provides in s 15(2) for several alternatives. The alternatives are to recover the unpaid portion by proceedings in court or make an adjudication application and in addition notice may be given suspending the work. It was submitted that those two main alternatives should have the same result. In effect if one proceeds down the litigation path by commencing proceedings in respect of variation claim most of which are 100% complete that is the end of the matter as there is no ability to change path and make an adjudication application. The same result should follow as if one had proceeded down the adjudication path. 21 It was the defendant's submission that this approach was far too simplistic a construction of the Act and the provisions of the Act had to be construed in proper context. This takes me to a consideration of the construction of the Act. Both parties referred to the objects of the Act and s 3 which are in these terms: " 3 Object of Act (1) The object of this Act is to ensure that any person who undertakes to carry out construction work (or who undertakes to supply related goods and services) under a construction contract is entitled to receive, and is able to recover, progress payments in relation to the carrying out of that work and the supplying of those goods and services. (2) The means by which this Act ensures that a person is entitled to receive a progress payment is by granting a statutory entitlement to such a payment regardless of whether the relevant construction contract makes provision for progress payments. (3) The means by which this Act ensures that a person is able to recover a progress payment is by establishing a procedure that involves: (a) the making of a payment claim by the person claiming payment, and (b) the provision of a payment schedule by the person by whom the payment is payable, and (c) the referral of any disputed claim to an adjudicator for determination, and (d) the payment of the progress payment so determined. (4) It is intended that this Act does not limit: (a) any other entitlement that a claimant may have under a construction contract, or (b) any other remedy that a claimant may have for recovering any such other entitlement." 22 The plaintiffs point to the cascading procedure set out in the section to illustrate that it is not every payment claim that has to go to adjudication. The defendant emphasised subsection (1) and the entitlement to receive a payment on each reference date under s 8 of the Act. They also referred to the fact that completion of particular items of works does not of itself determine the right to make progress claims: see Brodyn Pty Ltd t/as Time Cost and Quality v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421 at [62]-[63]. 23 As the President said in Dualcorp s 13 should be read with s 8 and the definition of the phrase "progress payment" in s 4. The relevant parts of the act as follows: 4 Definitions

progress payment means a payment to which a person is entitled under section 8, and includes (without affecting any such entitlement): (a) the final payment for construction work carried out (or for related goods and services supplied) under a construction contract, or (b) a single or one-off payment for carrying out construction work (or for supplying related goods and services) under a construction contract, or (c) a payment that is based on an event or date (known in the building and construction industry as a "milestone payment"). 8 Rights to progress payments (1) On and from each reference date under a construction contract, a person: (a) who has undertaken to carry out construction work under the contract, or (b) who has undertaken to supply related goods and services under the contract, is entitled to a progress payment. (2) In this section, reference date , in relation to a construction contract, means: (a) a date determined by or in accordance with the terms of the contract as the date on which a claim for a progress payment may be made in relation to work carried out or undertaken to be carried out (or related goods and services supplied or undertaken to be supplied) under the contract, or (b) if the contract makes no express provision with respect to the matter - the last day of the named month in which the construction work was first carried out (or the related goods and services were first supplied) under the contract and the last day of each subsequent named month. 13 Payment claims (1) A person referred to in section 8 (1) who is or who claims to be entitled to a progress payment (the claimant ) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment. (2) A payment claim: (a) must identify the construction work (or related goods and services) to which the progress payment relates, and (b) must indicate the amount of the progress payment that the claimant claims to be due (the claimed amount ), and (c) must state that it is made under this Act. (3) The claimed amount may include any amount: (a) that the respondent is liable to pay the claimant under section 27 (2A), or (b) that is held under the construction contract by the respondent and that the claimant claims is due for release. (4) A payment claim may be served only within: (a) the period determined by or in accordance with the terms of the construction contract, or (b) 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), whichever is the later. (5) A claimant cannot serve more than one payment claim in respect of each reference date under the construction contract. (6) However, subsection (5) does not prevent the claimant from including in a payment claim an amount that has been the subject of a previous claim. 22 Adjudicator's determination ... (4) If, in determining an adjudication application, an adjudicator has, in accordance with section 10, determined: (a) the value of any construction work carried out under a construction contract, or (b) the value of any related goods and services supplied under a construction contract, the adjudicator (or any other adjudicator) is, in any subsequent adjudication application that involves the determination of the value of that work or of those goods and services, to give the work (or the goods and services) the same value as that previously determined unless the claimant or respondent satisfies the adjudicator concerned that the value of the work (or the goods and services) has changed since the previous determination. 24 Although s 22(4) does not apply in the present case as there was no prior adjudication it is important in the construction of the Act. Its proper construction was determined by the Court of Appeal in Dualcorp by McFarlane JA with whom the others agreed in these terms: "63 I return now to s 22(4), as I said I would in [39] above. 64 Section 22(4) has been the subject of consideration by McDougall J in a number of judgments. In Rothnere v Quasar & Ors [2004] NSWSC 1151 his Honour said: "41. There is one other point that needs to be mentioned. Mr Christie submitted that, where s 22(4) referred to the valuation of construction work, it meant, in substance, the value that the respondent to a payment claim was liable to pay. That was a step in his argument which was that s 22(4) was introduced by the Building and Construction Industry Security of Payment (Amendment) Act 2002, to discourage what the Minister, in the Second [Reading] Speech, had referred to as "adjudicator shopping", and that it should be construed (if ambiguous) so as to facilitate the achievement of that end.

I do not think that it is possible to read s 22(4) in this way. Section 8 gives an entitlement to a progress payment for construction work. Section 10 sets out how construction work is to be valued. The phrase "construction work" itself is a defined phrase: see section 5.

A determination under the Act may involve both questions of quantification - the section 10 issue - and questions of entitlement; or it may involve one or the other.

In my judgment, s 22(4) itself makes it clear that an adjudication determination need not necessarily include the valuation of construction work: the use of the introductory word "If" makes this clear. Subsection (4) therefore only applies where a component of a determination - that is to say, in terms of s 22(1)(a), of the determination of the amount of the progress payment (if any) to be paid - includes a determination of the value of construction work. Where it does, then subs (4) applies. Where it does not (either because the work has not at all been valued before or because the value of the work has changed) then s 10(1) applies. But there is nothing in these considerations that indicates that the phase "construction work" when used in s 22(4) should be construed in any way other than the way that it is used throughout the Act." 65 In John Goss Projects v Leighton Contractors & Anor [2006] NSWSC 798; (2006) 66 NSWLR 707, his Honour said: "37. The provisions of the relevant construction contract (s 22(2)(b)) will be relevant for a number of reasons. They may specify the reference dates on and from which a claimant has an entitlement to a progress payment (s 8). They may specify how the amount of the progress payment is to be calculated (s 9). They may specify how the construction work is to be valued (s 10). They may specify the due date for payment (s 11).

Although all those matters (and many others that may be taken into consideration under s 22(2)) go to the determination of the amount of the progress payment that is payable, they do not all deal with the valuation of the construction work that is the subject of the payment claim for that progress payment. The adjudicator's task may (and usually will) comprehend more than merely the valuation of the relevant construction work. Attention to the requirements of the contract may indicate that there are to be deducted from, or offset against, that value some particular amounts (for example, retention payments or conceded back charges for defective or incomplete work). Thus, construction work may be valued at a particular sum, but the adjudicated amount of the progress payment may be less than that sum because of some such deduction or offset.

Further, there may be a question as to whether the claimant is entitled to be paid at all for construction work: for example, for an unauthorised variation where the contract specifies that the written authority of the respondent is required as a precondition of entitlement. (I leave aside, for present purposes, the possible impact of s 34 on such a provision.)

he precise issue that s 22(4) posed for Mr Davenport was not the amount determined by Mr Dutton as the progress payment payable in respect of the March payment claim. It was whether, in determining the amount of that progress payment, Mr Dutton had valued construction work that was required to be valued in the second adjudication pursuant to the May payment claim. Sections 9 and 10 make it clear that there is a distinction between the calculation of the amount of a progress payment (which is, ultimately, what the adjudicator is required to do) and the valuation of construction work. That is the distinction that I sought to point out (on reflection, in a way that was perhaps unduly brief and somewhat delphic) in para [43] of my decision in Rothnere." 66 I agree with the approach taken by McDougall J to the construction of s 22(4). As his Honour points out, there are many issues of potential relevance to a progress claim which could not aptly be described as involving the determination of the value of the construction work. For example, s 11 of the Act provides that if the contract makes a relevant express provision, a progress payment becomes due and payable "on the date on which the payment becomes due and payable in accordance with the terms of the contract". If a claim for a progress payment were made prior to a date stipulated by the contract and an adjudicator rejected the claim because it was premature, that determination could not in my view be said to be, or involve, one as to the value of the construction work. 67 I do not consider however that s 22(4) should be regarded as an exhaustive statement of the matters determined by an earlier adjudication which are binding on a subsequent adjudicator. For reasons I have given, I consider that the Act when read as a whole manifests an intention to preclude reagitation of the same issues. Thus, if questions of entitlement have been resolved by an adjudication determination, those findings may not in my view be reopened upon a subsequent adjudication. Likewise, if no subsequent adjudication occurs but a claimant proceeds (as here) to seek judgment following upon the failure of the other party to serve a Payment Schedule the claimant should be denied judgment to the extent that what it seeks is inconsistent with findings of the adjudicator." 25 The critical section to which regard has to be given in any proper construction of the Act is of course s 13 and in particular subsections (5) and (6). As the President said at paragraph 8 of his judgment in Dualcorp the subsections permit the inclusion in another payment claim (necessarily by reference to another reference date) an amount that has been the subject of a previous claim. He then gave a common example. That example of course fits in well with the scheme of the Act as frequently there are variation claims which proceed over a substantial period of time and will have an increasing value as each progress claim by reference to a new reference date is made. 26 What was emphasised in the defendant's submissions was a common situation that may occur where although the physical work is complete the total cost might not be apparent at the time of submitting a claim. For instance a subcontractors invoice might not be received or some item of cost may be overlooked. Take a common example of a cost plus contract which does not give a right to progress payments. It may well be that after the completion of a separate part of the work and a submission of the claim another item of the cost may come to light. As long as it is included in the next reference date claim so as not to administratively overburden the owner why should the builder not be able to claim? It would not be fair to make him wait for the conclusion of the contract for a chance to exercise his rights under s 32 of the Act. 27 The defendant's construction of the Act seeks to accommodate these additional claims being made in order to allow the contractor to receive the benefit of the cash flow to which he is entitled under the Act notwithstanding that a claim will be for an amount in respect of work, which was physically complete at an earlier time. 28 There are two recent decisions of McDougal J which touch on the present problem. The first is Urban Traders v Paul Michael [2009] NSWSC 1072. At paragraph 89 and following he was dealing with a submission that it was permissible to include in a payment claim an amount that had been the subject of a previous claim, and that in circumstances where there had been no adjudicator's determination on the previous payment claim it could not be an abuse of process or outside the scheme of the Act to include in a payment claim an amount which had been included in a previous claim. He said: 88 Without intending to state comprehensively the circumstances in which a determination of a dispute will give rise to an issue estoppel, there must be, among other things, a decision on that dispute, by a court or other tribunal authorised to decide it, which has the requisite degree of finality.

89 By contrast, a liability arising under s 14(4) of the Act involves no reference to, or determination by, any decision-making body. Thus, one element associated with issue estoppel - a decision - is missing.

90 Further, I think, a liability arising under s 14(4) does not have the requisite degree of finality. If the liability is to be enforced, it must be through one of the two alternative mechanisms set out in s 15(2) of the Act. If the claimant proceeds down the first path - suing in a court of competent jurisdiction - judgment is not automatic. First, the claimant must establish the circumstances set out in s 15(1) of the Act (see s 15(4)(a)). Secondly, the respondent may defend the suit, although on limited grounds not including "any defence in relation to matters arising under the construction contract" (see s 15(4)(b)).

91 If the claimant proceeds down the second path - adjudication - then it must notify the respondent of its intention to do so, and give the respondent an opportunity to provide a payment schedule (see s 17(2)). If the respondent avails itself of that opportunity, then whatever dispute is raised by that payment schedule may be resolved in adjudication in the usual way (see s 22(2), noting in particular para (d)).

92 By contrast, enforcement of a determination is simpler: an adjudication certificate is filed as a judgment for a debt in a court of competent jurisdiction, and is enforceable accordingly (s 25(1)). True it is that the judgment may be set aside in certain circumstances (see s 25(4)). But in proceedings to set the judgment aside, the respondent may not, among other things, challenge the adjudicator's determination (see s 25(4)(a)(iii)).

93 Thus, in my view, there are significant differences between a liability arising under s 14(4) on the one hand, and a liability arising under an adjudicator's determination on the other. The essential qualities of determinations that give rise to issue estoppel are lacking from a statutory liability arising under s14(4). It is no answer to this to say that s 14(4) has the effect of, or should be deemed to be, an adjudicator's determination. The existence of issue estoppel is something determined by analysis of what it is that is said to give rise to the estoppel, not by the application of verbal formulae.

94 In the present case, there has been no adjudication of the claim raised by payment claim 19. It is not a case where the builder is seeking to have another adjudicator do what a previous adjudicator failed to do to its satisfaction. It is not a case where the builder is seeking to use the processes of the Act repetitiously, in an attempt to get a better outcome. On the contrary, if the builder's contention - that no payment schedule was provided in response to payment claim 19 - is correct, it has obtained the best outcome that it can get, in respect of the particular payment claim. That is because, by operation of s 14(4), the proprietors are liable for the amount claimed. The builder cannot do better than that in any adjudication. By repeating the claim in a subsequent payment claim, the builder gave the proprietors another opportunity to provide a payment schedule. In that payment schedule, the proprietors were entitled to answer not only the fresh aspects of the claim, but also those aspects that (as permitted by s 13(6)) had been included in the earlier payment claim.

95 What has happened in this case is far removed from the concept of abuse of process, in relation to the Act, that emerges from the authorities to which I have referred.

96 I conclude that the builder is not barred, by issue estoppel or some analogous form of estoppel or by the concept of abuse of process, from claiming, under payment claim 21, entitlements that were claimed under payment claim 19; and that this is so whether or not a payment schedule was provided in time in response to payment claim 19.' 29 In a similar vein in Allpro Building Services v C&V Engineering Services [2009] NSWSC 1247 McDougal J said: "25 Mr Kalyk sought to submit further, and in more general terms, the payment claim of 2 October 2009 repeated earlier payment claims that had been advanced at different times. However, even if that is so, it does not mean that there is an abuse of process or an issue estoppel. Those concepts become relevant to the extent that any of the payment claims have been the subject of prior adjudication (or, of course, of Court proceedings) or to the extent that any of those invoices is being propounded in a way that makes it relevantly an abuse of process. Repetition by itself does not seem to do so, particularly in circumstances where the Act acknowledges in at least two places that a claim may be advanced more than once (see s 13(6) and s 22(4))." 30 No doubt in referring to Court proceedings his Honour had in mind that a resolution of Court proceedings could lead to issue estoppel as an avenue for determining an abuse of process. In the present case the proceedings that have been commenced have not yet reached the stage of a hearing and accordingly there can be no issue estoppel. All that can be said about the commencement of the proceedings which is relevant to the September payment claim is that the contractor is seeking to enforce an entitlement to the progress claim where the work has been completed and for an amount which was then included in the September claim as the total amount of the claim for the variation. 31 The proper construction of the Act must accommodate the purpose of s 13(5) and s 13(6). The February payment claim had a new reference date even though the construction work was completed towards the end of 2009. This is permitted under the Act: see s 13(4)(b). As has been frequently said it is not simply a repetition by itself which leads to an abuse. There must be something in all the circumstances for the abuse to arise. Here it is plain that the additional amounts now sought to be recovered in respect of variations which were the subject of the earlier claims is for a different amount. The amount is a distinct item of cost which was not claimed in the earlier claims. Although in an expansive use of the word there is some "reagitation" of the factual background there has been no "reagitation" of the entitlement to the earlier claimed amount. 32 It is plain that in the ordinary case where a claim is made to a completed piece of work the owner might justifiably feel entitled to regard the claim as the totality of the claim. In the present circumstance it is clear that there was an accidental omission of the claim for preliminaries. There is no suggestion of misleading or deceptive conduct in respect of the omission and what it is sought to rectify is said to be a clear entitlement to some payment of an additional amount by the contractor in respect of the same item of work. It obviously would have been more expedient if the claim had been made earlier so that the owner could have considered it at the time of the earlier claim. Although there will be more work because of the contractor's default in this regard I do not think that this is a sufficient reason to conclude that there is an abuse of process. 33 In these circumstances on the proper construction of the Act I do not think it can be said that an abuse has arisen. In the event that I had not reached this conclusion there are other reasons why an order restraining the whole of the adjudication process should not be made. That is the existence of claims for variations V226, V228, V229 and NV 1 - 5 that are fresh claims in the February claim. The amounts of the positive variations total $2,100,288 and the amount of the negative variations total $1,032,000. The total claim for preliminaries is $1,299,015. The new claims are a substantial part of the February claim. Given the nature of the new claims it would be hard to suggest that the preliminaries claim is a substantial and unseverable part of the February claim which should lead to the restraint of the whole adjudication process as occurred in the University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635. 34 I dismiss the proceedings with costs and dissolve the existing interlocutory injunction.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Source

Judgment (29 paragraphs)

Parties

Cases Cited (10)