Parist Holdings Pty Ltd v WT Partnership Australia Pty Ltd

(c) he made a finding in para 25.17 of his reasons that, upon its proper construction, the contract obliged the Plaintiff to pay GST. 39 At the conclusion of his oral submissions to the court Mr Newton, counsel for the Plaintiff, summarised the questions as to ultra vires this way (T.page 46):

(a) The Adjudicator stepped outside his powers insofar as he resorted to "findings of law" in deciding the existence or otherwise of oral or implied terms of the contract.

(b) He acted ultra vires in that he received, and ruled upon, evidence in relation to the existence or otherwise of the terms of the contract.

(c) He acted ultra vires in that, in effect, he acted as a tribunal of fact in dealing with evidence concerning the appropriate rate or rates to be applied in respect of some parts of the claim and in making findings based upon his preference of "one set of evidence against another where he had no power to do so".

(d) He made a finding of law as to the date on which an obligation to make payments fell due.

40 Importantly, during the hearing Mr Newton acknowledged that he was unable to show that any conduct said to be ultra vires was relevant to, or affected, the determination of any component of the adjudicated amount. It was not put that in reaching his decision the Adjudicator illegitimately took into account matters outside the issues arising from the payment claim, the payment schedule and the submissions. To the best of my understanding the gravamen of the complaint as elicited in arguendo was that it was not open to the Adjudicator to decide whether or not the contract contained an implied term, and it was not open to him to construe the provisions of the contract to determine whether the Plaintiff was obliged to pay GST. 41 The Adjudicator's powers are found in s 22(2) of the Act which provides: "22 (2) In determining an adjudication application, the adjudicator is to consider the following matters only: (a) the provisions of this Act, (b) the provisions of the construction contract from which the application arose, (c) the payment claim to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the claimant in support of the claim, (d) the payment schedule to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the respondent in support of the schedule, (e) the results of any inspection carried out by the adjudicator of any matter to which the claim relates". 42 Thus, in the process of determining an adjudication application the Adjudicator is, at least, obliged to consider the provisions of the relevant contract (s 22(2)(b)), the payment claim and submissions and relevant documentation in support (s 22(2)(c)) and the payment schedule and submissions and relevant documentation in support (s 22(2)(b)). From these provisions it is perfectly clear that the legislature envisages that parties will raise disputed issues, and requires the Adjudicator to resolve them in the course of making a determination of the amount and date pursuant to s 25(1). 43 It is impossible to accept that the proper exercise of power and discharge of function would not ordinarily require an adjudicator to interpret contractual documents and/or evidence as to the existence of an oral contract or oral terms, and/or to make findings as to the existence and effect of contractual provisions whether express, implied, written or oral. (In passing, it is to be observed that by s 7 the Act applies to any construction contract, whether written or oral, or partly written and partly oral). It seems clear enough from the Minister's statement referred to in para 32 above, and as a matter of plain common sense having regard to the terms of s 22, these are likely to be necessary steps to be taken in the course of deciding a dispute the ambit of which is evidenced by the payment claim and the payment schedule. Acceptance that the process is not judicial and that there is no power to call for witnesses or to give evidence under oath provides no support for the Plaintiff's submissions. 44 In my opinion it was properly within the Adjudicator's powers and functions to consider, and to come to a view about, each of the matters relied upon by the Plaintiff as being conduct ultra vires, and the submission must be rejected. In any event, the acknowledgement that none of these matters affected the determination of any component of the adjudicated amount is tantamount to an acknowledgment that the ultra vires question raises no triable issue. Conclusion 45 Having regard to s 25(4) of the Act, I am satisfied as to the existence of the circumstances referred to in subs (1) that:

(a) the Plaintiff has failed to pay the whole or any part of the adjudicated amount to the Defendant; and

(b) the Plaintiff has failed to give security for payment of the whole or any part of the adjudicated amount to the Defendant. 46 For the reasons given I hold that the Plaintiff has failed in its opposition to the relief sought in the notice of motion. I am satisfied that the Defendant is entitled under s 25(2)(a) to recover the whole of the adjudicated amount from the Plaintiff as a debt due to it, and is entitled to summary judgment pursuant to Pt 13 r 2 for the sum of $71,086.52. 47 I expect the parties to agree on the amount of interest, if any, payable in respect of the claim. In the circumstances it is appropriate that I direct the Defendant to bring in short minutes of orders which give effect to the reasons for decision. The parties may also address me in relation to costs. Directions may also be given in relation to the further conduct of the issues arising on the summons and the cross claim. Arrangements should be made with my Associate by 9 May 2003 for the relisting of this matter.

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