Plaintiff v Defendants

Plaintiff v Defendants - [2015] VSC 631 - VSC 2015 case summary — Zoe

[44]

(1) A person referred to in section 9(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 be in the relevant prescribed form (if any); and

(b) must contain the prescribed information (if any); and

(c) must identify the construction work or related goods and services to which the progress payment relates; and

(d) must indicate the amount of the progress payment that the claimant claims to be due (the claimed amount); and

(e) must state that it is made under this Act.

(3) The claimed amount -

(a) may include any amount that the respondent is liable to pay the claimant under section 29(4);

(b) must not include any excluded amount.

(4) A payment claim in respect of a progress payment (other than a payment claim in respect of a progress payment that is a final, single or one-off payment) may be served only within -

(a) the period determined by or in accordance with the terms of the construction contract in respect of the carrying out of the item of construction work or the supply of the item of related goods and services to which the claim relates; or

(b) the period of 3 months after the reference date referred to in section 9(2) that relates to that progress payment -

whichever is the later.

(5) A payment claim in respect of a progress payment that is a final, single or one-off payment may be served only within -

(a) the period determined by or in accordance with the terms of the construction contract; or

(b) if no such period applies, within 3 months after the reference date referred to in section 9(2) that relates to that progress payment.

(6) Subject to subsection (7), once a payment claim for a claimed amount in respect of a final, single or one-off payment has been served under this Act, no further payment claim can be served under this Act in respect of the construction contract to which the payment claim relates_._

(7) Nothing in subsection (6) prevents a payment claim for a claimed amount in respect of a final, single or one-off payment being served under this Act in respect of a construction contract if -

(a) a claim for the payment of that amount has been made in respect of that payment under the contract; and

(b) that amount was not paid by the due date under the contract for the payment to which the claim relates.

(8) A claimant cannot serve more than one payment claim in respect of each reference date under the construction contract.

(9) However, subsection (8) does not prevent the claimant from including in a payment claim an amount that has been the subject of a previous claim if the amount has not been paid.

[53]

42 Dispute Resolution

42.1A Acknowledgement

The parties acknowledge and agree that the process set out in clause 42 is a method for resolving disputes under the Contract for the purposes of section 10A(3)(d) of the SOP Act.

42.1 Notice of dispute

If a difference or dispute (together called a 'dispute') between the parties arises in connection with the subject matter of the Contract, including a dispute concerning:

(a) a Superintendent's direction; or

(b) a claim made otherwise at law under the law governing the Contract:

then either party shall, by hand or by registered post, give the other and the Superintendent a written notice of dispute adequately identifying and providing details of the dispute.

Notwithstanding the existence of a dispute, the parties shall, subject to clauses 39 and 40 and subclause 42.4, continue to perform the Contract.

42.2 Conference

(a) If a party delivers a notice of dispute to the other party, then within 10 business days of the date on which the other party receives the notice of dispute, senior representatives of the parties at Project level must meet and use reasonable endeavours acting in good faith to resolve the dispute by joint discussions.

(b) If the dispute has not been resolved within 28 days of service of the notice of dispute, that dispute shall be and is hereby referred to mediation.

42.3A Mediation

If within a further 14 days of the dispute being referred to mediation the parties have not agreed upon a mediator, the mediator shall be nominated by the person in Item 37A.

The party issuing the notice of dispute shall be responsible for convening and organising the mediation.

The mediation shall be conducted on the following basis:

(c) the mediation is to be conducted in accordance with the Institute of Arbitrators and Mediators Australia's Rules for the Mediation of Commercial Disputes; and

(d) each of the parties must pay an equal share of the fees and expenses the mediator is entitled to and any room hire charges.

If the dispute has not been resolved by mediation or is not otherwise resolved within 56 days of service of the notice of dispute, either party may pursue its rights at law.

[185]

In my view, the standard to be applied in considering the sufficiency of an arbitrator's reasons depends upon the circumstances of the case including the facts of the arbitration, the procedures adopted in the arbitration, the conduct of the parties to the arbitration and the qualifications and experience of the arbitrator or arbitrators. For example, in a straightforward trade arbitration before a trade expert, a less exacting standard than would be expected of a judge's reasons should be applied in considering the adequacy of the reasons for the making of an award. On the other hand, in a large-scale commercial arbitration, where the parties engage in the exchange of detailed pleadings and witness statements prior to a formal hearing before a legally qualified arbitrator, a higher standard of reasons is to be expected. This is especially so where the arbitrator is a retired judicial officer.

I adopt with approval the statement by McPherson and Davies JJA in Cypressvale Pty Ltd v Retail Shop Lease Tribunal on this issue:

The calibre, legal training and experience of members of the judiciary raise expectations that reasons they give for their decisions will attain a high level of sophistication. The same would not always be true of decisions of persons whose primary qualification for decision-making consists of specialist knowledge or experience rather than ability to produce reasons conforming to accepted judicial tradition. Reasons that would not be considered adequate if given by a judge may nevertheless suffice for some other decision-makers not chosen for their task because of their resemblance to the judiciary. In the end, the question whether reasons are 'adequate' falls to be considered in the context afforded by the nature of the question which has to be decided and other factors, including the functions, talents and attributes of the tribunal member or the individual in whom the duty of deciding questions of that kind has been vested. Considerations of the cost to litigants and the general public in requiring reasons to be given is another factor which must be weighed.

At a glance

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Judgment (333 paragraphs)

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Legislation Cited (5)

Cases Cited (3)