Reported Decision : |
61 NSWLR 421 |
CITATION : | Brodyn Pty. Ltd. t/as Time Cost and Quality v. Davenport & Anor. [2004] NSWCA 394 | |
HEARING DATE(S) : | 1, 13 and 14 October 2004 | |
JUDGMENT DATE : |
3 November 2004 |
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JUDGMENT OF : | Mason P at 1; Giles JA at 2; Hodgson JA at 3 | |
DECISION : | Appeal dismissed with costs. |
CATCHWORDS : | BUILDING AND CONSTRUCTION - Progress payments - Building & Construction Industry Security of Payment Act - Adjudicator's determination - Adjudication certificate - Consequent judgment - Grounds for judicial intervention - Whether certiorari available - Grounds on which purported determination void - Natural justice - Error of law - Reference dates - Effect of termination of contract or cessation of work - Home Building Act - Effect of absence of licence - Exercise of discretion - Whether other relief available in respect of judgment, including stay of execution. | |
LEGISLATION CITED : | Building & Construction Industry Security of Payment Act 1999 Home Building Act 1989 ss.3, 4, 10, 11, 94. Supreme Court Act 1970 s.69 |
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CASES CITED : | Abacus Funds Management v. Davenport [2003] NSWSC 1027 Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147 Banks v. Transport Regulation Board (Vic) (1968) 119 CLR 222 Brodyn Pty. Limited v. Davenport [2003] NSWSC 1019 Calvin v. Carr [1080] AC 574 Craig v. South Australia (1995) 184 CLR 163 Durayappah v. Fernando [1967] 2 AC 337 Emag Constructions Pty. Limited v. Highrise Concrete Contractors (Aust) Pty. Limited [2003] NSWSC 903 Holdmark Developers Pty. Limited v. G.J. Formwork Pty. Limited [2004] NSWSC 905 Minister for Immigration v. Bhardwaj (2002) 209 CLR 597 Multiplex Constructions Pty. Limited v. Luikens [2003] NSWSC 1140 Musico v. Davenport [2003] NSWSC 977 Project Blue Sky Inc. v. Australian Broadcasting Authority (1998) 194 CLR 355 R v. Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598 Ridge v. Baldwin [1964] AC 40 Transgrid v. Walter Construction Group [2004] NSWSC 21 |
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PARTIES : |
Brodyn Pty. Limited t/as Time Cost and Quality - appellant Philip Davenport - 1st respondent Dasein Constructions Pty. Limited - 2nd respondent |
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FILE NUMBER(S) : | CA 40296/04 | |
COUNSEL : | Mr. P. Callaghan SC with Ms. R. Rana for appellant Mr. P.G. Fisher for respondents |
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SOLICITORS : | Schrader & Associates, Parramatta for appellant Turnbull Bowles, Sydney for respondents |
LOWER COURT JURISDICTION : |
Supreme Court - Equity Division | |
LOWER COURT FILE NUMBER(S) : |
SC 5412/03 | |
LOWER COURT JUDICIAL OFFICER : |
Gzell J |
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
SC 5412/03 MASON P GILES JA HODGSON JA Wednesday 3 November 2004
BRODYN. LTD. T/a TIME COST AND QUALITY V. DAVENPORT & ANOR.
HEADNOTE
Brodyn entered into a construction contract with Dasein to which the Building & Construction Industry Security of Payment Act 1999 (the Act) applied. On 13 June, Brodyn gave notice to Dasein alleging repudiation of the contract by Dasein, and purporting to accept that repudiation. On 27 June 2003, Dasein served Broydn with a document stated to be a payment claim under the Act. Brodyn responded by serving a payment schedule in accordance with s.14 of the Act. On 28 August 2003, and again on September 2003, Dasein served Brodyn with further documents stated to be payment claims under the Act. On 29 September, Brodyn served a further payment schedule in accordance with s.14 of the Act. The payment schedule contended inter alia that money should be deducted for incomplete work and for rectifying defects, and that claimant had breached cl.43 by not furnishing a statutory declaration as to payment of workers On 2 October 2003, Dasein made an adjudication application under the Act in respect of its claim served on 28 September 2003. The adjudicator made his determination on 16 October 2003 giving reasons that did not refer to the contentions referred to above. An adjudicator’s certificate under the Act was issued on 17 October 2003. This certificate was filed in the District Court on the same day so as to give it effect of judgment, as provided in s.25 of the Act. Broydn applied to the Supreme Court for an order in the nature of certiorari quashing the adjudicator’s determination, on the grounds that the relevant payment claim was invalid, and that there had been a denial of natural justice. The primary judge considered that certiorari was available if the payment claim was not valid, but refused relief in the exercise of his discretion because it could not result in the setting aside of the s.25 judgment. After lodging an appeal from that decision, Brodyn for the first time became aware that Dasein did not have at relevant times a licence under the Home Building Act 1989. Brodyn submitted on appeal that this caused the subcontract to become illegal (s.4) and unenforceable (s.10), and Dasein was not entitled to any progress payments.
(2) Musico v. Davenport [2003] NSWSC 977 and the cases which followed it are incorrect, to the extent that they hold that relief in the nature of certiorari is available to quash a determination which is not void. There is no occasion where relief in the nature of certiorari would be available and required. If a determination is void, relief is available by way of declaration and injunction. If the basic requirements of the Act are not complied with, or if a purported determination is not a bona fide attempt to exercise the power granted under the Act, or if there is a substantial denial of the measure of natural justice required under the Act, then a purported determination will be void and not merely voidable. (3) The payment claim in this case was valid. The decision in Holdmark Developers Pty. Limited v. G.J. Formwork Pty. Limited [2004] NSWSC 905 is incorrect, to the extent that it decides that only one payment claim can be made after termination of a contract and/or cessation of work. (4) The adjudicator’s failure to refer to Brodyn’s submission that money should be deducted for incomplete work and for rectifying defects, and that the claimant had breached cl.43 of the subcontract by not furnishing a statutory declaration, did not amount to a denial of natural justice nor render the determination void. (5) Dasein’s failure to have a licence under the HBA is not a ground on which the adjudicator’s determination could be considered void, or for otherwise giving relief in respect of the determination. ORDERS 1. Appeal dismissed with costs.
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IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
SC 5412/03 MASON P GILES JA HODGSON JA Wednesday 3 November 2004
BRODYN PTY. LTD. t/a TIME COST AND QUALITY V. DAVENPORT & ANOR.
Judgment
CIRCUMSTANCES
1) No contract binds the parties after TCQ’s acceptance of Daseins (sic) wrongful repudiation and hence Dasein Constructions Pty Limited have no further rights to progress claims. 2) TCQ submitted a detailed payment schedule on 10 July 2003 in response to the final claim dated 28 June 2003 and rely upon the information contained within. 3) The purported progress claim is outside the jurisdiction of the Act, for the reason that a final claim has previously been submitted. Section 13(5) of the Act states the claimant is only entitled to serve one payment claim in respect of each reference date. TCQ is another label for Brodyn. STATUTORY PROVISIONS
(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.
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”). It is common ground that the contract in this case is a construction contract, to which the Act applies (s.7).
(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. 9 Amount of progress payment The amount of a progress payment to which a person is entitled in respect of a construction contract is to be: (a) the amount calculated in accordance with the terms of the contract, or (b) if the contract makes no express provision with respect to the matter, the amount calculated on the basis of the value of construction work carried out or undertaken to be carried out by the person (or of related goods and services supplied or undertaken to be supplied by the person) under the contract. 10 Valuation of construction work and related goods and services (1) Construction work carried out or undertaken to be carried out under a construction contract is to be valued: (a) in accordance with the terms of the contract, or (b) if the contract makes no express provision with respect to the matter, having regard to:
(ii) any other rates or prices set out in the contract, and (iii) any variation agreed to by the parties to the contract by which the contract price, or any other rate or price set out in the contract, is to be adjusted by a specific amount, and (iv) if any of the work is defective, the estimated cost of rectifying the defect. 11 Due date for payment (1) A progress payment under a construction contract becomes due and payable: (a) on the date on which the payment becomes due and payable in accordance with the terms of the contract, or (b) if the contract makes no express provision with respect to the matter, on the date occurring 10 business days after a payment claim is made under Part 3 in relation to the payment. …
(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. 14 Payment schedules (1) A person on whom a payment claim is served (the respondent ) may reply to the claim by providing a payment schedule to the claimant. (2) A payment schedule: (a) must identify the payment claim to which it relates, and (b) must indicate the amount of the payment (if any) that the respondent proposes to make (the scheduled amount ). (3) If the scheduled amount is less than the claimed amount, the schedule must indicate why the scheduled amount is less and (if it is less because the respondent is withholding payment for any reason) the respondent’s reasons for withholding payment. (4) If: (a) a claimant serves a payment claim on a respondent, and (b) the respondent does not provide a payment schedule to the claimant:
(ii) within 10 business days after the payment claim is served, whichever time expires earlier, 17 Adjudication applications (1) A claimant may apply for adjudication of a payment claim (an adjudication application ) if: (a) the respondent provides a payment schedule under Division 1 but:
(ii) the respondent fails to pay the whole or any part of the scheduled amount to the claimant by the due date for payment of the amount, or (2) An adjudication application to which subsection (1) (b) applies cannot be made unless: (a) the claimant has notified the respondent, within the period of 20 business days immediately following the due date for payment, of the claimant’s intention to apply for adjudication of the payment claim, and (b) the respondent has been given an opportunity to provide a payment schedule to the claimant within 5 business days after receiving the claimant’s notice. (3) An adjudication application: (a) must be in writing, and (b) must be made to an authorised nominating authority chosen by the claimant, and (c) in the case of an application under subsection (1) (a) (i) - must be made within 10 business days after the claimant receives the payment schedule, and (d) in the case of an application under subsection (1) (a) (ii) - must be made within 20 business days after the due date for payment, and (e) in the case of an application under subsection (1) (b) - must be made within 10 business days after the end of the 5-day period referred to in subsection (2) (b), and (f) must identify the payment claim and the payment schedule (if any) to which it relates, and (g) must be accompanied by such application fee (if any) as may be determined by the authorised nominating authority, and (h) may contain such submissions relevant to the application as the claimant chooses to include. (4) The amount of any such application fee must not exceed the amount (if any) determined by the Minister. (5) A copy of an adjudication application must be served on the respondent concerned. (6) It is the duty of the authorised nominating authority to which an adjudication application is made to refer the application to an adjudicator (being a person who is eligible to be an adjudicator as referred to in section 18) as soon as practicable. 18 Eligibility criteria for adjudicators (1) A person is eligible to be an adjudicator in relation to a construction contract: (a) if the person is a natural person, and (b) if the person has such qualifications, expertise and experience as may be prescribed by the regulations for the purposes of this section. (2) A person is not eligible to be an adjudicator in relation to a particular construction contract: (a) if the person is a party to the contract, or (b) in such circumstances as may be prescribed by the regulations for the purposes of this section. 19 Appointment of adjudicator (1) If an authorised nominating authority refers an adjudication application to an adjudicator, the adjudicator may accept the adjudication application by causing notice of the acceptance to be served on the claimant and the respondent. (2) On accepting an adjudication application, the adjudicator is taken to have been appointed to determine the application. 20 Adjudication responses (1) Subject to subsection (2A), the respondent may lodge with the adjudicator a response to the claimant’s adjudication application (the adjudication response ) at any time within: (a) 5 business days after receiving a copy of the application, or (b) 2 business days after receiving notice of an adjudicator’s acceptance of the application, whichever time expires later. (2) The adjudication response: (a) must be in writing, and (b) must identify the adjudication application to which it relates, and (c) may contain such submissions relevant to the response as the respondent chooses to include. (2A) The respondent may lodge an adjudication response only if the respondent has provided a payment schedule to the claimant within the time specified in section 14 (4) or 17 (2) (b). (2B) The respondent cannot include in the adjudication response any reasons for withholding payment unless those reasons have already been included in the payment schedule provided to the claimant. (3) A copy of the adjudication response must be served on the claimant. 21 Adjudication procedures (1) An adjudicator is not to determine an adjudication application until after the end of the period within which the respondent may lodge an adjudication response. (2) An adjudicator is not to consider an adjudication response unless it was made before the end of the period within which the respondent may lodge such a response. (3) Subject to subsections (1) and (2), an adjudicator is to determine an adjudication application as expeditiously as possible and, in any case: (a) within 10 business days after the date on which the adjudicator notified the claimant and the respondent as to his or her acceptance of the application, or (b) within such further time as the claimant and the respondent may agree. (4) For the purposes of any proceedings conducted to determine an adjudication application, an adjudicator: (a) may request further written submissions from either party and must give the other party an opportunity to comment on those submissions, and (b) may set deadlines for further submissions and comments by the parties, and (c) may call a conference of the parties, and (d) may carry out an inspection of any matter to which the claim relates. (4A) If any such conference is called, it is to be conducted informally and the parties are not entitled to any legal representation. (5) The adjudicator’s power to determine an adjudication application is not affected by the failure of either or both of the parties to make a submission or comment within time or to comply with the adjudicator’s call for a conference of the parties. 22 Adjudicator’s determination (1) An adjudicator is to determine: (a) the amount of the progress payment (if any) to be paid by the respondent to the claimant (the adjudicated amount ), and (b) the date on which any such amount became or becomes payable, and (c) the rate of interest payable on any such amount. (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 (if any) 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. (3) The adjudicator’s determination must: (a) be in writing, and (b) include the reasons for the determination (unless the claimant and the respondent have both requested the adjudicator not to include those reasons in the 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. (5) If the adjudicator’s determination contains: (a) a clerical mistake, or (b) an error arising from an accidental slip or omission, or (c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the determination, or (d) a defect of form, the adjudicator may, on the adjudicator’s own initiative or on the application of the claimant or the respondent, correct the determination. 24 Consequences of not paying claimant adjudicated amount (1) If the respondent fails to pay the whole or any part of the adjudicated amount to the claimant in accordance with section 23, the claimant may: (a) request the authorised nominating authority to whom the adjudication application was made to provide an adjudication certificate under this section, and (b) serve notice on the respondent of the claimant’s intention to suspend carrying out construction work (or to suspend supplying related goods and services) under the construction contract. … 25 Filing of adjudication certificate as judgment debt (1) An adjudication certificate may be filed as a judgment for a debt in any court of competent jurisdiction and is enforceable accordingly. (2) An adjudication certificate cannot be filed under this section unless it is accompanied by an affidavit by the claimant stating that the whole or any part of the adjudicated amount has not been paid at the time the certificate is filed. (3) If the affidavit indicates that part of the adjudicated amount has been paid, the judgment is for the unpaid part of that amount only. (4) If the respondent commences proceedings to have the judgment set aside, the respondent: (a) is not, in those proceedings, entitled:
(ii) to raise any defence in relation to matters arising under the construction contract, or (iii) to challenge the adjudicator’s determination, and 27 Claimant may suspend work (1) A claimant may suspend the carrying out of construction work (or the supply of related goods and services) under a construction contract if at least 2 business days have passed since the claimant has caused notice of intention to do so to be given to the respondent under section 15, 16 or 24. (2) The right conferred by subsection (1) exists until the end of the period of 3 business days immediately following the date on which the claimant receives payment for the amount that is payable by the respondent under section 15 (1), 16 (1) or 23 (2). (2A) If the claimant, in exercising the right to suspend the carrying out of construction work or the supply of related goods and services, incurs any loss or expenses as a result of the removal by the respondent from the contract of any part of the work or supply, the respondent is liable to pay the claimant the amount of any such loss or expenses. (3) A claimant who suspends construction work (or the supply of related goods and services) in accordance with the right conferred by subsection (1) is not liable for any loss or damage suffered by the respondent, or by any person claiming through the respondent, as a consequence of the claimant not carrying out that work (or not supplying those goods and services) during the period of suspension. 28 Nominating authorities (1) Subject to the regulations, the Minister: (a) may, on application made by any person, authorise the applicant to nominate adjudicators for the purposes of this Act, and (b) may withdraw any authority so given. … 32 Effect of Part on civil proceedings (1) Subject to section 34, nothing in this Part affects any right that a party to a construction contract: (a) may have under the contract, or (b) may have under Part 2 in respect of the contract, or (c) may have apart from this Act in respect of anything done or omitted to be done under the contract. (2) Nothing done under or for the purposes of this Part affects any civil proceedings arising under a construction contract, whether under this Part or otherwise, except as provided by subsection (3). (3) In any proceedings before a court or tribunal in relation to any matter arising under a construction contract, the court or tribunal: (a) must allow for any amount paid to a party to the contract under or for the purposes of this Part in any order or award it makes in those proceedings, and (b) may make such orders as it considers appropriate for the restitution of any amount so paid, and such other orders as it considers appropriate, having regard to its decision in those proceedings.
(1) The provisions of this Act have effect despite any provision to the contrary in any contract. (2) A provision of any agreement (whether in writing or not): (a) under which the operation of this Act is, or is purported to be, excluded, modified or restricted (or that has the effect of excluding, modifying or restricting the operation of this Act), or (b) that may reasonably be construed as an attempt to deter a person from taking action under this Act, is void. DECISION OF PRIMARY JUDGE
GROUNDS OF APPEAL
(a) Failed to determine the issue of whether the claim the subject of the Adjudication was a claim within the provisions of the Building and Construction Security of Payment Act 1999 ("the Act"); (b) Failed to determine whether the Adjudicator had jurisdiction to determine the claim; (c) Misinterpreted section 25 of the Act in holding that the section debarred the appellant from making the application for a writ of certiorari; (d) Failed to take into account or deal with submissions made by the appellant that jurisdictional error arose because of a denial of natural justice in that he:
(ii) Failed to consider the matters referred to in the payment schedule; and (iii) Failed to deal with the onus of proof of the quantum of the claim before the Adjudicator; (f) Misdirected himself as to the utility of granting relief in the nature of a writ of certiorari. 2. At all relevant times, the Second Respondent was not licensed under the Home Building Act 1989.
2. His Honour should have held that upon the proper construction of the Act, the Adjudication process under the Act in (sic) not judicial; 3. His Honour should have found that upon the true construction of the Act, the Adjudication process is a sui generis system of provisional dispute resolution; 4. His Honour should have held that an adjudicator appointed in accordance with s19 of the Building and Construction Industry Security of Payment Act 1999 is not a tribunal or inferior court subject to s69 of the Supreme Court Act 1970; 5. His Honour should have held that if a determination of an adjudicator under the Building and Construction Industry Security of Payment Act 1999 is open to judicial review, the proper construction of the Act excludes judicial review in the nature of prerogative relief; 6. His Honour should have held that an adjudication determination made pursuant to s22 of the Act is not an "ultimate determination" within the meaning of s69(3) of the Supreme Court Act 1970; 7. His Honour should have held that the privative effect of s25(4) of the Act prevents judicial review in the nature of prerogative relief in the form of a writ of certiorari pursuant to s69 of the Supreme Court Act 1970 once judgment is entered; 8. His Honour should have found that the Appellant was entitled to seek to set aside the Judgment entered in the District Court pursuant to section 25(4) of the Act on the basis that there had not been a valid adjudication. 9. His Honour should have found, on a proper construction of the Act, that s25(4) of the Act does not allow the respondent to challenge the adjudicator's determination for any errors made intra vires; 10. His Honour should have held that the Appellant actions amounted to an abuse of process and/or that the Appellant acted in bad faith in seeking to delay payment of the adjudication amount without recourse to s25(4) of the Act whilst seeking to have contractual issues finally determined. EXERCISE OF DISCRETION GROUNDS FOR JUDICIAL REVIEW
29 In the first of those cases, Atkin LJ, at the reference given, said:
30 In the second of those cases, at the reference given, Lord Reid considered a number of the earlier cases, including the judgment of Atkin LJ just referred to. His Lordship said, at 75, that the duty to act judicially could arise simply from the tribunal’s duty to determine what the rights of an individual should be: it was not necessary that there should be something more to impose on it such a duty. 31 In the third of those cases, at the reference given, Lord Diplock referred to and, as he put it, “broadened” what Atkin LJ had said by omitting, as a separate requirement (in terms of Atkin LJ’s formulation) the reference to “having the duty to act judicially”. Having referred to what Lord Reid had said in Ridge, Lord Diplock said:
32 I therefore conclude, in answer to the question posed in para 22 above, that, apart from any privative effect the Act might have, relief under s 69 of the Supreme Court Act would, in principle, lie against an adjudicator appointed under s 19 of the Act.
49 The decision in Craig at 179 established that, in the absence of a contrary intention in the statute or other constituting instrument, an administrative tribunal lacks power either authoritatively to determine questions of law or to make an order or decision otherwise than in accordance with the law. 50 Accordingly, there will be cases where a decision otherwise than in accordance with the applicable law involves jurisdictional error. As the court said in Craig , after stating the principles referred to in the preceding paragraph:
52. I therefore conclude that, where the determination of a dispute submitted to an adjudicator under the Act requires the adjudicator to consider issues of law, the adjudicator will not fall into jurisdictional error simply because he or she makes an error of law in the consideration and determination of those issues. It would be otherwise, as the High Court pointed out in Craig (echoing, I think, what Lord Reid said in Anisminic) , if the error of law causes the adjudicator to make one or other (or more) of the jurisdictional errors that the court identified: in such a case, relief would lie, subject to any relevant discretionary considerations.
(1) Where formerly: (a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or (b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act: (c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ, and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules. (2) Subject to the rules, this section does not apply to: (a) the writ of habeas corpus ad subjiciendum, (b) any writ of execution for the enforcement of a judgment or order of the Court, or (c) any writ in aid of any such writ of execution. (3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. (5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision.
2. The service by the claimant on the respondent of a payment claim (s.13). 3. The making of an adjudication application by the claimant to an authorised nominating authority (s.17). 4. The reference of the application to an eligible adjudicator, who accepts the application (ss.18 and 19). 5. The determination by the adjudicator of this application (ss.19(2) and 21(5)), by determining the amount of the progress payment, the date on which it becomes or became due and the rate of interest payable (ss.22(1)) and the issue of a determination in writing (ss.22(3)(a)). INVALIDITY OF PAYMENT CLAIM? DENIAL OF NATURAL JUSTICE?
43.1 Payment of Workers The Subcontract Superintendent may, not less than 5 days before each payment certificate is due, in writing direct the Subcontractor to- (a) give the Subcontract Superintendent a statutory declaration by the Subcontractor or, where the Subcontractor is a corporation, by a representative of the Subcontractor who is in a position to know the facts declared, that all workers who have at any time been employed by the Subcontractor on work under the Subcontract have at the date of the direction been paid all moneys due and payable to them in respect of their employment on the work under the Subcontract; and (b) provide documentary evidence to the Subcontract Superintendent that at the date of the direction all workers who have been employed by a secondary subcontractor have been paid all moneys due and payable to them in respect of their employment on the work under the Subcontract. 43.2 Payment of Secondary Subcontractors Not earlier than 14 days after the Subcontractor has made each claim for payment under Clause 42.1, and before the Main Contractor makes that payment to the Subcontractor, the Subcontractor shall give to the Subcontract Superintendent a statutory declaration by the Subcontractor or, where the Subcontractor is a corporation, by a representative of the Subcontractor who is in a position to know the facts declared, that all secondary subcontractors have been paid all moneys due and payable to them in respect of work under the Subcontract. 43.3 Withholding of Payment If the Subcontractor fails- (a) to provide, within 5 days of the direction by the Subcontract Superintendent pursuant to Clause 43.1, the statutory declaration or the documentary evidence, as the case may be; or (b) to comply with Clause 43.2, then notwithstanding Clause 42.1, the Main Contractor may withhold payment of moneys due to the Subcontractor until the statutory declaration or documentary evidence, as the case may be, is received by the Subcontract Superintendent. If the Subcontractor provides to the Subcontract Superintendent satisfactory proof of the maximum amount due and payable to workers and secondary subcontractors by the Subcontractor, the Main Contractor shall not be entitled to withhold any amount in excess of the maximum amount. 43.4 Direct Payment Where the Main Contractor is entitled to or is required to make payment to any worker or secondary subcontractor of a sum owing to the worker or secondary subcontractor, the Main Contractor may, on behalf of the Subcontractor, make the payment directly to the worker or secondary subcontractor and the amount so paid shall be a debt due from the Subcontractor to the Main Contractor. At the written request of the Subcontractor, and out of moneys payable to the Subcontractor, the Main Contractor may on behalf of the Subcontractor make payments directly to any worker or secondary subcontractor of the Subcontractor. If a payment is made in respect of moneys referred to in Clause 43.1 or 43.2 by the Main Contractor to or in respect of a worker or secondary subcontractor in compliance with a Legislative Requirement, the amount paid shall be a debt due from the Subcontractor to the Main Contractor. If any worker or secondary subcontractor obtains a court order in respect of moneys referred to in Clause 43.1 or 43.2 and produces to the Main Contractor the court order and a statutory declaration that it remains unpaid, the Main Contractor may pay the amount of the order, and costs included in the order, to the worker or secondary subcontractor and the amount paid shall be a debt due from the Subcontractor to the Main Contractor. After becoming aware of the occurrence of a relation-back day (as defined in the Corporations Law) in respect of the Subcontractor, the Main Contractor shall not make any payment (other than a payment made pursuant to a Legislative Requirement) to a worker or secondary subcontractor without the concurrence of the official receiver or trustee in bankruptcy of the estate of the bankrupt or the liquidator, as the case may be.
2.42.1 delete "Subcontract Superintendent" wherever appearing and substitute "Main Contractor". 2.42.2 Fourth paragraph - second line delete "to the Main Contractor and". 2.42.3 Add at the end the following additional paragraph: "The Subcontractor shall deliver with each claim for payment a statutory declaration warranting:
2.42.3.2 that the value of any approved or directed variation is as stated in the claim for payment; and 2.42.3.3 as to the matters required by subparagraph (a) and (b) of Clause 43.1 of this Subcontract. LACK OF HOME BUILDING ACT LICENCE
(a) the construction of a dwelling, or (b) the making of alterations or additions to a dwelling, or (c) the repairing, renovation, decoration or protective treatment of a dwelling. It includes work declared by the regulations to be roof plumbing work or specialist work done in connection with a dwelling and work concerned in installing a prescribed fixture or apparatus in a dwelling (or in adding to, altering or repairing any such installation). It does not include work that is declared by the regulations to be excluded from this definition. specialist work means: (a) plumbing work (other than work declared by the regulations to be roof plumbing work), or (b) gasfitting work, or (c) electrical wiring work, or (d) any work declared by the regulations to be refrigeration work or air-conditioning work.
A person must not contract to do: (a) any residential building work, or (b) any specialist work, except as or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work. 10 Enforceability of contracts and other rights (1) A person who contracts to do any residential building work, or any specialist work, and who so contracts: (a) in contravention of section 4 (Unlicensed contracting), or (b) under a contract to which the requirements of section 7 apply that is not in writing or that does not have sufficient description of the work to which it relates (not being a contract entered into in the circumstances described in section 6 (2)), or (c) in contravention of any other provision of this Act or the regulations that is prescribed for the purposes of this paragraph, is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, and the contract is unenforceable by the person who contracted to do the work. However, the person is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person. (2), (3) (Repealed) (4) This section does not affect the liability of the person for an offence against a provision of or made under this or any other Act. 11 Other rights not affected This Division does not affect any right or remedy that a person (other than the person who contracts to do the work) may have apart from this Act.
(1) If a contract of insurance required by section 92 is not in force, in the name of the person who contracted to do the work, in relation to any residential building work done under a contract (the uninsured work ), the contractor who did the work: (a) is not entitled to damages, or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, in relation to that work, and (b) is not entitled to recover money in respect of that work under any other right of action (including a quantum meruit). (1A) Despite section 92 (2) and subsection (1), if a court or tribunal considers it just and equitable, the contractor, despite the absence of the required contract of insurance, is entitled to recover money in respect of that work on a quantum meruit basis. (1B) A contractor who applies to a court or tribunal for a remedy under this section, or who is awarded money under this section, is not guilty of an offence under section 92 (2) by virtue only of that fact. (1C) Without limiting the factors that a court or tribunal may consider in deciding what is just and equitable under subsection (1A): (a) in relation to any contract - the court or tribunal may have regard to the impact on the resale price of the property if no contract of insurance is provided, and (b) in relation only to a contract entered into before 30 July 1999 - the court or tribunal is not to be limited by the fact that the required contract of insurance was not obtained until after the date of the contract. (2) However, the contractor remains liable for damages and subject to any other remedy in respect of any breach of the contract committed by the contractor. (3) Residential building work that is uninsured work at the time the work is done ceases to be uninsured work for the purposes of this section if the required contract of insurance for the work is subsequently obtained. (4) If a person commenced residential building work before 30 July 1999 and entered into a contract of insurance that complies with this Act in relation to that work after the contract for the residential building work was entered into, that contract of insurance is, for the purposes of this section or any previous version of this section, taken to have been in force in relation to the residential building work done under the contract for the residential building work whether that work was done before or after the contract of insurance was entered into. Note. If a contract of insurance is in force in relation to part of the residential building work, this section applies only in relation to the part of the work that is not insured. CONCLUSION
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