10 Although DPD could go to SAT for swift review of the adjudicator's decision: s 46, it chooses to invoke the ancient remedies of certiorari and mandamus by which this court supervises other jurisdictions.

11 While prerogative relief is an appropriate remedy, the adjudicator was correct and the application is dismissed.

12 In Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217 the Full Court held that object of the adjudication procedure remained subject to judicial supervision for jurisdiction and other reviewable errors of law. At issue in Perrinepod was a decision not to dismiss an application.

13 In the present case, the adjudicator has made a decision to dismiss the application. The CCA s 46 gives a right of review of a person aggrieved by a decision to dismiss an application without making a determination on the merits. This does not prevent a prerogative relief. Ordinarily an alternative statutory review procedure will be a considerable factor against the exercise of discretion to grant relief for the reasons set out by K Martin J in Re Graham AnsteeBrook; Ex parte Mount Gibson Mining Ltd [2011] WASC 172. Parliament has clearly intended SAT to be the principal reviewer.

14 However, other reasons can operate in favour of the exercise of the discretion, for example, Re Graham AnsteeBrook; Ex parte Karara Mining Ltd [2012] WASC 129.

15 The adjudicator has filed a notice of intention to abide the decision of the court. This is an expected and appropriate position. More significantly, however, the first and second respondents, who might have been the real contradictors, have also filed an intention to abide the result. So no injustice will flow if the court exercises its power.

16 A review to SAT can be followed by an appeal to a single judge of this court. The applicant argues that the adjudicator was wrong because he followed a decision from a sessional member of SAT which was wrong. If this proposition was correct, there is merit in this court deciding the issue.

17 As there is no opposition, DPD seeks an order that I decide not only whether an order nisi should issue but that the order should be made absolute. This would be a sensible and convenient course if the application had merit.

18 Was the adjudicator correct in finding that the claims of 3 November and 8 November 2011 were refreshed payment claims, the original payment claims being 17 February 2011 and 17 June 2011? Yes.

19 Was the adjudicator correct in holding that the application for adjudication was out of time? Yes.

20 To understand this application and the reasons for my refusal of it, it is necessary to refer to a number of the sections of the CCA.

payment claim means a claim made under a construction contract -

(a) by the contractor to the principal for payment of an amount in relation to the performance by the contractor of its obligations under the contract;

...

payment dispute has the meaning given to that term in section 6.

...

For the purposes of this Act, a payment dispute arises if -

(a) by the time when the amount claimed in a payment claim is due to be paid under the contract, the amount has not been paid in full, or the claim has been rejected or wholly or partly disputed;

(b) by the time when any money retained by a party under the contract is due to be paid under the contract, the money has not been paid; or

(c) by the time when any security held by a party under the contract is due to be returned under the contract, the security has not been returned.

22 The contract did not have a written provision about how a party is to make a claim and therefore the provisions of sch 1 div 4 are implied.

23 Under sch 1, div 4, s 5:

Claim for payment, content

(1) In this clause -

(a) by the contractor to the principal for payment of an amount in relation to the performance by the contractor of its obligations under this contract; or

(b) by the principal to the contractor for payment of an amount in relation to the performance or nonperformance by the contractor of its obligations under this contract.

(a) be in writing;

(b) be addressed to the party to which the claim is made;

(c) state the name of the claimant;

(d) state the date of the claim;

(e) state the amount claimed;

(f) in the case of a claim by the contractor - itemise and describe the obligations that the contractor has performed and to which the claim relates in sufficient detail for the principal to assess the claim;

(g) in the case of a claim by the principal - describe the basis for the claim in sufficient detail for the contractor to assess the claim;

(h) be signed by the claimant; and

(i) be given to the party to which the claim is made.

(3) In the case of a claim by the contractor, the amount claimed in a payment claim -

(a) must be calculated in accordance with this contract; or

(b) if this contract does not provide a means of calculating the amount, must be -

(i) if this contract says that the principal is to pay the contractor one amount (the contract sum) for the performance by the contractor of all of its obligations under this contract (the total obligations) - the proportion of the contract sum that is equal to the proportion that the obligations performed and detailed in the claim are of the total obligations;

(ii) if this contract says that the principal is to pay the contractor in accordance with rates specified in this contract - the value of the obligations performed and detailed in the claim calculated by reference to those rates; or

(iii) in any other case - a reasonable amount for the obligations performed and detailed in the claim.

(4) Paragraph (b) of subclause (3) does not prevent the amount claimed in a progress claim from being an aggregate of amounts calculated under one or more of subparagraphs (i), (ii) and (iii) of that paragraph.

24 Part 3, div 2, s 26 provides:

Applying for adjudication

(1) To apply to have a payment dispute adjudicated, a party to the contract, within 28 days after the dispute arises or, if applicable, within the period provided for by section 37(2)(b), must -

(a) prepare a written application for adjudication;

(b) serve it on each other party to the contract;

(c) serve it -

(i) if the parties to the contract have appointed a registered adjudicator and that adjudicator consents, on the adjudicator;

(ii) if the parties to the contract have appointed a prescribed appointor, on that appointor;

(iii) otherwise, on a prescribed appointor chosen by the party;

(d) provide any deposit or security for the costs of the adjudication that the adjudicator or the prescribed appointor requires under section 44(8) or (9).

(a) must be prepared in accordance with, and contain the information prescribed by, the regulations;

(b) must set out the details of, or have attached to it -

(i) the construction contract involved or relevant extracts of it; and

(ii) any payment claim that has given rise to the payment dispute;

(c) must set out or have attached to it all the information, documentation and submissions on which the party making it relies in the adjudication.

(3) A prescribed appointor that is served with an application for adjudication made under subsection (1) must comply with section 28.

The claims of 17 February and 17 June 2011 are payment claims

25 DPD submits that the invoices of 17 February and 17 June 2011 are not payment claims within the definition and therefore the claims of 3 and 8 November 2011 were payment claims in respect of which a payment dispute arose. DPD applied within 28 days (s 26) for adjudication of the dispute that arose when lawyers for the respondents rejected the claims of November 2011.

26 The submission by DPD's counsel that the claims of February and June 2011 are not payment claims would have come as a surprise to the respondents, and, I expect, to DPD at the time.

27 On 14 February 2011 an email electronically signed Lawrence Olivier, consultant project manager begins:

Please find attached Claim 2 summary sheet as discussed.

...

If you can please remember to forward me the invoicing details for both Claim 1 and this claim, so Pamela at our office can email me your tax invoices for immediate payment as agreed with Daren.

28 Attached was, what I regard as a sufficiently itemised claim to describe the obligations that the contractor has performed and to which the claim relates in sufficient detail for the principal to assess the claim. For example:

29 Other items such as practical products, carpentry, demolition/general labour, cabinmaker, mirrors, plumbing, wall paper/painters, supervision are also detailed.

30 The first respondent replied on the same evening:

We need to discuss all costs of items on claim at next meeting so I'm clear on what is what prior to payments.

Can you please forward your bank account details so I can transfer a payment today.

I realise the invoice still has adjustments but at least I can start forwarding a weekly payment via direct debit.

32 Contrary to the DPD submission, the claims of 17 February 2011 are clearly payment claims within the definition of s 5.

33 On 17 June 2011 in an email electronically signed 'Pamela Nuttall, Office Manager, DPD:

Hi Emilie

I have attached an updated account balance for your reference. I have included the money you gave Daren and I last Thursday 16/6/11.

I have also attached a copy of our tax invoice 708 being claim 2 and submitted to you in February 2011 (this is included in the $214,206.77 balance owing).

As discussed I am still yet to invoice part of the balance owing being $66,706.92.

Owing in summary:-

• Already invoiced (708) = $147,499.85
• Yet to be invoiced = $66,706.92
• Total Balance Owing as at 17/6/11 = $214,206.77

As discussed in our meeting last Thursday (9/6/11), we require funds from you urgently. We are currently stretching our overdraft to its limit and with end of financial year just days away it is critical that we make payments prior. If this emails sounds desperate that's because it is ...

35 Attached was a copy of claim 2 of 17 February 2011. This is clearly a payment claim.

36 The ground that the claims of 17 February and 17 June 2011 are not payment claims is without merit.

37 This claim gave rise to a dispute as evidenced by the reply and denial of liability from the solicitors for the respondents. The request for adjudication was lodged on an undated form in December 2011 but it is not in issue that it was lodged within time.

38 The claims of 3 November and 8 November 2011 were identical payment claims served on Zafiro and Ms McHenry respectively in the sum of $201,945.31 plus agreed interest of $63.41 per day on and from 4 May 2011. Solicitors for Zafiro Pty Ltd responded on 18 November 2011 disputing the payment claim. No response was received from Ms McHenry.

39 In a statement provided to the adjudicator in support of the claim in submissions in support, DPD asserted:

1. DPD Pty Ltd were advised by McHenry that invoices for work done should be made out to Zafiro Pty Ltd (Deen Annexure B). Invoices for claims 1 and 2 of $128,644.45 and $234,741.55 (GST inclusive) respectively were forwarded to Zafiro (Deen Annexure Q) on 17 February 2011. By an email dated 22 February 2011, in response to a request for a payment schedule from DPD Pty Ltd, McHenry said she would make weekly payments of $10,000.00 and will pay larger sums when available. There was no dispute at that time about the amounts claimed (Deen Annexure R).

1. In an email dated 25 February 2011 McHenry said, after a further $50,000.00 was to be transferred the following week that this would then leave an outstanding amount to DPD Pty Ltd of 'around $190,000.00'. She said 'again I stress that I have not refused to pay them, it will just take longer than first expected'. (Deen Annexure W). On 2 March 2011 in an email to DPD Pty Ltd copied to Nando Zappavigna, a director of Zafiro Pty Ltd, she said 'again I state all outstanding accounts will be paid in full' (Deen Annexure X).

40 In relation to the claim of 17 June 2011, the respondents' solicitor in its response to the claim wrote on 18 November 2011:

In any event our client denies that there was ever any agreement by Zafiro:

1. to pay DPD on the basis of a costs plus contract; or
2. to pay DPD a balance of $201,945.31; or
3. to pay interest; or
4. that any sum of money was due to be paid by 17 November 2011.

41 The factual situation seems to be that the respondents accepted their liability to make a payment on claims 1 and 2 and negotiated to pay over time. They did not however pay all the claim. Such an arrangement is accepted within the construction industry and is sensible. However, the plain meaning of CCA s 6 is that a payment dispute arises whenever a claim is not paid in full when it is due.

42 The adjudicator relied on Georgiou Group Pty Ltd and MCC Mining (Western Australia) Pty Ltd. SAT analysed recent authorities from this jurisdiction and the Northern Territory in its written decision concluding:

A payment claim is a claim that an amount, whatever it may be, is claimed for the performance of the contractor's obligations under the contract; in other words, a particular amount is claimed for particular work. The making of a later claim for the same work, even if claimed at a different rate, is in substance a claim in respect of the same contractual obligation. The terms of the contract, express or implied, will determine the correct rate to which the contractor is entitled. The predominant feature of a payment claim is therefore the claim by the contractor that it has performed particular work. The right to adjudicate that claim must be exercised within 28 days of the date of the payment dispute arising. The claim cannot be characterised as a new claim simply by varying the rate charged. A construction of the definition of 'payment claim' and s 6 which permits such a course would not advance the purpose of the legislation. It would enable claims to be dressed up in a different format and would defeat the intent of the legislation that monies due under the contract be enforced in a timely manner [64].

43 In Thiess Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2011] WASC 80 Corboy J noted:

Neither party referred to decisions in SAT concerning 'recycled' claims. However, I note that in Silent Vector Pty Ltd and Squarcini [2008] WASAT 39 and Merym Pty Ltd and Methodist Ladies College [2008] WASAT 164, the Tribunal held that the mere repetition of a payment claim previously made could not give rise to a new payment dispute for the purpose of s 26 CC Act. That is also the position that has been adopted by the Supreme Court of the Northern Territory in respect of the Territory's legislation that is modelled on the CC Act: see A J Lucas Operations [109].

44 The Court of Appeal of the Northern Territory has further considered the matters in K & J Burns Electrical Pty Ltd v GRD Group (NT) Pty Ltd [2011] NTCA 1. At issue was the interpretation of the Construction Contracts (Security of Payments) Act 2004 (NT) which is in relevant respects similar to the CCA.

45 The court differed in the result. Southwood J held that:

The combined effect of s 33(1)(a)(ii) and s 28(1)(a) and (b) of the Construction Contracts (Security of Payments) Act 2004 (NT) is that a claimant's right to adjudication of a payment dispute is destroyed unless the claimant prepares and serves the application for adjudication within 90 days after the dispute arises. The 90 day time limit is a substantive condition attached to the statutory right of adjudication of a payment dispute granted by the Act.

The combined operation of s 28(1)(a) and (b) and s 33(1)(a)(i) of the Construction Contracts (Security of Payments) Act 2004 (NT) is to confer a right to adjudication which is to endure for 90 days after a payment dispute arises. The statement that, 'to apply to have a payment dispute adjudicated a party to the contract must, within 90 days after the dispute arises prepare a written application for adjudication [and] serve it on each other party to the contract', means 'and not otherwise. When the time limit expires the right to adjudication of a payment dispute is terminated or defeated. That this is so, is made abundantly clear by the requirement in s 33(1)(a) of the Act that the adjudicator must dismiss the application without making a determination on its merits. The right to apply for adjudication of a payment dispute is subject to a condition namely that the right be exercised within 90 days of the payment dispute arising. The condition is part of the statutory right to adjudication that is conferred by the Act. The right to apply for adjudication, being a conditional right, is lost when the condition is not satisfied. The right, having been lost, cannot be revived or retriggered by the making of another payment claim for the same amount for the same construction work. The filing of a repeat payment claim comprised of claims for the identical amounts for the identical work cannot operate to revive a right which the Act Parliament has terminated or destroyed. The condition created by s 28(1)(a) and (b) of the Act was part of the right conferred by s 27 of the Act, and the right to apply to for adjudication, being a conditional right, was lost when the condition was not satisfied.

There are important reasons why Parliament has determined that the 90 day period for making an application which is established by s 28(1)(a) and (b) of the Construction Contracts (Security of Payments) Act 2004 (NT) is an essential precondition to an adjudicator's jurisdiction to determine an application on the merits. First, under the Act, Parliament has merely introduced an interim or provisional stage in the dispute resolution process. It has not abolished arbitration and litigation of construction disputes. There is little point in a party applying for adjudication of a payment dispute if the contract is at an end. If the contract is at an end a final decision can be made by the parties or a court on the entitlement of the parties and there is no point in a payment on account. Second, it assists in achieving the object of the Act. It facilitates timely payments between the parties. Under the Act neither the claimant nor respondent can sit on their hands. Payment claims must be made and paid or made and enforced. It is clearly intended that adjudication is a timely, efficient and economic interim dispute resolution procedure. Third, given the time constraints that both a respondent and an adjudicator are under, the 90 day period helps ensure that it is possible for the adjudicator to fairly make a determination. The limitation period created by s 28(1)(a) and (b) of the Act ensures that claimants are not free to prepare large and detailed claims over whatever time periods they may choose and launch them without warning. 'Ambush' tactics by claimants have been notorious in the United Kingdom for many years and, as Matthew Bell and Donna Vella have stated, are becoming better understood in Australia. Under s 33(1)(a)(iv) of the Act, when considering if it is possible to fairly make a determination, an adjudicator is required to consider the complexity of the matter and the time in which he or she is required to make a decision. It must not be forgotten that a respondent only has 10 working days to respond to an application for adjudication and an adjudicator should ordinarily make a determination within 10 working days after the service of a party's response to an application for adjudication. Finally, compliance with the time constraints imposed by the Construction (Security of Payments) Act 2004 (NT) is not burdensome for an applicant and is within the control of an applicant. Nor are the consequences of non compliance burdensome. An applicant still retains the entitlement to pursue its claims in the courts [55] - [57].

46 Kelly J differed in the result on this point by looking at the actual contract under consideration (which was a written contract):

[I]n each case one must look to the contract to determine when a payment was due and hence when the payment dispute arose. One imagines that in most contracts, a 'repeat invoice' claiming no new work and simply served in an attempt to 're-set the clock' for the purpose of an application for adjudication, would not have the desired effect. However, one cannot be dogmatic. There are contracts, for example, where the contractor is to put in a final claim setting out all amounts claimed: each of these may have been the subject of one (or more) progress claims, and there may have been no new work done. It is always a matter of going to the contract to determine when the payment dispute arose according to the express and/or implied terms of the contract [124].

Whilst I respectfully accept that the manner in which s 8 sets out to define what constitutes a payment dispute does not make any provision for the retriggering, by a repeat payment claim, of a payment dispute in respect of a payment claim that had been made earlier, as to which the 90 day limit has expired, nevertheless, it does not prohibit such a practical situation arising if such a situation is expressly stipulated for by the relevant construction contract [260].

48 K & J Burns does not stand for a general proposition that supports DPD. Resolution of the appeal turned on the particular provisions of the written contract between the parties. It was the interpretation of that contract which gave rise to the differing views expressed by the court as to whether it was a payment claim that gave rise to a dispute within the period.

49 I do not read the judgements of Kelly and Olsson JJ as substantially departing from the general principle expressed by Southwood J. I respectfully consider that Southwood J's expression of principle is correct.

• to provide a means for adjudicating payment disputes arising under construction contracts,

Object of the adjudication process

The object of an adjudication of a payment dispute is to determine the dispute fairly and as quickly, informally and inexpensively as possible.

52 The CCA provides for a swift resolution of noncomplex payment disputes. Rather than wait for arbitration or court proceedings at the end of a contract, payment disputes may be resolved even while the contract continues to run.

53 The words of the CCA s 6(a) are unambiguous. A payment dispute arises if by the time the amount claimed is due to be paid the amount has not been paid in full. The amount must be paid within 28 days after a payment claim. Any right to adjudication arise solely from statute, and in consequence must be so governed. Time limits are imposed in many sections of the CCA and in the schedules. The clear aim is to have matters determined quickly. This is not solely for the benefit of the parties but for the wider community in keeping the flow of money going especially when subcontractors and others are involved.

54 Consequently, the right to adjudication given by statute lapses if not exercised within the time limits. Taking the most beneficial view of the facts, the right to adjudication by DPD in respect of payment claims that had been submitted previously was lost by mid July 2011. Once lost, any attempt to revive it in November 2011 was doomed.

55 K & J Burns was decided on the context of specific and detailed contractual provisions. The present matter falls to be decided by references to the provisions implied under the CCA. K & J Burns is not a general authority for allowing repetitive claims. The majority held in that case that the contract provided for repeat invoices:

In each case one must look to the contract to determine when a payment was due and hence when the payment dispute arose [124].

56 The decision of SAT in Georgiou Group Pty Ltd and MCC Mining [47] [63] is an accurate statement of principle. The decision of the adjudicator to dismiss the application without considering its merits because the payment claims of 3 and 8 November 2011 are nothing more than refreshed versions of claims previously submitted in part as far back as February 2011 is correct.

57 The failure to seek submissions from the parties on the issue is serious. When a party has not been given a fair opportunity to respond to an issue which might be decided adversely to them the rules of natural justice are breached.

58 Normally this would result in prerogative relief. However, in this case, the adjudicator's decision at law would still have been the same as it was right. There is no point in relief on this one ground.

59 The applications for an order nisi and a rule absolute are refused.