MATCH PROJECTS PTY LTD and ARCCON (WA) PTY LTD [2009] WASAT 56 (2 April 2009)

 

Last Updated: 7 April 2009

 

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : COMMERCIAL & CIVIL

ACT : CONSTRUCTION CONTRACTS ACT 2004 (WA)

CITATION : MATCH PROJECTS PTY LTD and ARCCON (WA) PTY LTD [2009] WASAT 56

MEMBER : MR C RAYMOND (SENIOR MEMBER)

HEARD : 25 MARCH 2009

DELIVERED : 2 APRIL 2009

FILE NO/S : CC 236 of 2009

BETWEEN :MATCH PROJECTS PTY LTD

Applicant

AND

ARCCON (WA) PTY LTD

Respondent

Catchwords:

Construction Contracts Act 2004 (WA) - Application for extension of time

Legislation:

Builders' Registration Act 1939 (WA)

Construction Contracts Act 2004 (WA), s 3 , s 26 , s 26(1) , s 26(1)(b) , s 29(3) , s 30 , s 31(2) , s 31(2)(a) , s 31(2)(a)(i) , s 31(2)(b) , s 31(3) , s 32(2)(a) , s 32(2)(b) , s 32(3) , s 33 , s 36 , s 41(1) , s 42(2) , s 46 , s 46(1) , s 46(2) , s 49

Corporations Act 2001 (Cth)

State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(i) , s 29(3)(c)(ii) , s 42 , s 91

State Administrative Tribunal Rules 2004 (WA), r 10

Town Planning and Development Act 1928 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant : Mr W Ryan

Respondent : Mr S Boyle

Solicitors:

Applicant : Deacons

Respondent : Clayton Utz

 

Case(s) referred to in decision(s):

Diploma Construction Pty Ltd and Esslemont Nominees Pty Ltd [2006] WASAT 350

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Gallo v Dawson [1990] HCA 30 ; (1990) 64 ALJR 458

ITQ Pty Ltd and Hyde Park Management Ltd [2008] WASAT 66

Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516

Mustac v Medical Board of Western Australia [2007] WASCA 128

O'Connor and Town of Victoria Park [2005] WASAT 161

O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2009] WASC 19

The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304

 

REASONS FOR DECISION OF THE TRIBUNAL :

 

Summary of Tribunal's decision

 

1 The Tribunal heard an application to extend the time to review the decision of an adjudicator under s 46(1) of the Construction Contracts Act 2004 (WA). The adjudicator had handed down a determination requiring the applicant to pay the respondent an amount of $650,783.93.

 

2 The Tribunal applied the criteria as set out in O'Connor and Town of Victoria Park [2005] WASAT 161 in determining whether or not to grant the extension of time. In relation to each relevant factor, the Tribunal found as follows.

 

3 The Tribunal found that the period of delay was seven weeks; alternatively, depending upon the date on which a valid adjudication application was taken to have been delivered, a period of five weeks. The Tribunal concluded that a delay of seven weeks, or five weeks, in the context of legislation which required an entire adjudication process to be generally completed within 28 days, was a lengthy delay. In the course of determining the length of delay, the Tribunal concluded a proposed basis of review in which it was submitted that the Tribunal should determine whether the adjudication application was to be deemed to be dismissed under s 31(3) of the Construction Contracts Act 2004 (WA) was not susceptible to the Tribunal's jurisdiction. The Tribunal held that it was appropriate that any extension of time be limited to proposed grounds of review which were arguable on their merits, and also arguably within jurisdiction, and therefore that the application would be refused in respect of this particular proposed basis of review.

 

4 The Tribunal was satisfied that a good explanation had been provided for the delay. Until the Supreme Court handed down the decision in O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2009] WASC 19 , the applicant reasonably believed that it had no right of review consistent with the earlier decision of the Tribunal in Diploma Construction Pty Ltd and Esslemont Nominees Pty Ltd [2006] WASAT 350.

 

5 The Tribunal also accepted that there existed an arguable case for review. Careful consideration was required to be given to the Supreme Court decision to determine its effect on the practices of the Tribunal and the ambit of the review permitted in this case under s 46 of the Construction Contracts Act 2004 (WA). Further, there was an arguable issue as to whether the adjudication application had been served in compliance with s 26 of the Construction Contracts Act 2004 (WA). However, the Tribunal rejected the applicant's submissions that it had the power to review whether the adjudicator had exceeded his jurisdiction by allegedly making a determination in respect of a party alleged not to be a party to the relevant construction contract.

 

6 In circumstances in which the respondent's application to the District Court to enforce the adjudication determination was being opposed, and was unlikely to be determined before the proceedings in the Tribunal, it was concluded that the respondent would suffer no real prejudice if an extension of time were to be granted.

 

7 The Tribunal accepted that the public interest in determining the ambit of the right of review under s 46 of the Construction Contracts Act 2004 (WA) and the strictness with which the requirements of s 26 of that Act should be applied, were factors in favour of the grant of the application, although they were secondary to the above primary factors. The Tribunal concluded that strict compliance with the time limit would work an injustice upon the applicant and that an extension of time should be granted but limited to those bases of review which it considered to be arguable.

 

The application

 

8 On 17 February 2009, the applicant ( Match Projects) applied to the Tribunal for an extension of time to review the decision of an adjudicator under s 46(1) of the Construction Contracts Act 2004 (WA) (CC Act). The adjudicator's determination requires Match Projects to pay to the respondent (Arccon) an amount of $650,783.93. A series of alternative orders are sought consequent upon the review being successful, to the general effect that the adjudication be dismissed without any consideration as to its merits, or that the adjudication application be taken to have been dismissed pursuant to s 32(3) of the CC Act as not having been determined within the prescribed time.

 

9 The adjudication determination was originally delivered on 2 December 2008 but was then purportedly amended pursuant to the slip rule, as provided for under s 41(1) of the CC Act. Depending upon whether a valid adjudication determination is taken to have been delivered on either 2 December 2008 or 16 December 2008, the application for review would have to have been lodged by 29 December 2008, as submitted by Arccon, or 12 January 2009, as submitted by Match Projects. The period of delay in the lodging of the application is therefore either five or seven weeks.

 

10 In order to avoid unnecessary costs being incurred, the parties requested that the application for an extension of time be dealt with first and it is therefore only that matter which falls to be determined at this stage. The Tribunal has had regard to all documentation which has been filed, including the written submissions, the oral submissions made at the hearing and the supplementary submissions which have been filed subsequent to the hearing.

 

11 In these reasons for decision all references to sections of legislation are to sections of the CC Act, unless expressly stated otherwise.

 

Background

 

12 Match Projects and Arccon executed a written contract in the standard form known as the ABIC MW-1 203 major works contract in terms of which Arccon agreed to carry out certain building works relating to the restoration and development of the W.D. and H.Q. Wills Building in Murray Street, Perth, for a contract sum of $20,482,000,000. In executing the contract, Match Projects did so as attorney for the party described in the contract as 'the owner' (item 1) as named in Sch 14 to the contract. The schedule identifies 12 owners, being corporate trustees for named trusts, Match Investments Pty Ltd, a company which is related to Match Projects, one other corporation in its own capacity, an individual as a trustee for a named trust, and five other natural persons.

 

13 Practical completion of the building works occurred on 18 February 2008. On 19 August 2008, Arccon submitted a progress payment claim No 23 (the payment claim) to the architects appointed under the contract responsible for its administration. The architects issued their assessment and a payment certificate in respect of the payment claim on 2 September 2008. It is common cause that the last date for service of the adjudication application, in accordance with s 26(1) of the Act, was 30 September 2008, being 28 days from the date that the payment dispute arose. On that date, the adjudication application was served on Match  Projects but not on any of the persons or entities identified as the owner under the contract.

 

14 The parties consented to extensions of time for the delivery of the determination under the adjudication application. A determination was delivered on the last day of that period, as extended, being 2 December 2008. The determination stated that a sum of $650,783.93 (inclusive of GST) was the amount which Match Projects was liable to pay Arccon and that the applicable date for payment was 16 September 2008 - a date which had obviously passed. This was raised with the adjudicator, and after hearing submissions from the parties, the adjudicator purported to hand down an amended determination, which the adjudicator corrected to reflect the date for payment being the date of the determination, 2 December 2008. The amended adjudication was handed down on 16 December 2008.

 

15 Arccon has asserted, and Match Projects has not disputed in its replying submissions, that application was made to the Supreme Court to enforce the determination on 23 December 2008. Due to the Christmas and New Year period, only one registrar was on duty to hear urgent matters and the processing of applications was delayed. On 8 January 2009, the Supreme Court registrar informed Arccon's solicitors that the application was not, in his opinion, in the correct format. Further, the registrar stated that as the jurisdiction of the District Court increased to $750,000 on 1 January 2009, the District Court would be the appropriate court to file the application. On 12 January 2009, an application to enforce the determination was filed at the District Court.

 

16 The District Court enforcement proceedings are opposed and a date has not yet been set for hearing.

 

The criteria to be applied

 

17 The criteria and principles to be applied in considering an application for an extension of time to apply for the review of a reviewable decision are set out comprehensively in a decision of the then President of the Tribunal, Justice Barker, in O'Connor and Town of Victoria Park [2005] WASAT 161 ( O'Connor ). His Honour there set out the power as expressed in r 10 of the State Administrative Tribunal Rules 2004 (WA) (Tribunal Rules), which, when read with s 42 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), enables the Tribunal to extend any time fixed either under the SAT Act, or the Tribunal Rules for the commencement of a proceeding. Reference is made to Gallo v Dawson [1990] HCA 30 ; (1990) 64 ALJR 458 at 459 where it is explained that the object of a rule permitting the extension of time is to ensure that those rules which fix time for doing acts do not become instruments of injustice. Consequently, the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant and further, at 459:

 

[I]n order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time ... It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has a 'vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.

 

18 At [40] of O'Connor , Barker J also referred to Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516 in which the High Court did not doubt the correctness of the four factors identified by Kennedy J in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198 as being the principal matters for consideration in the exercise of the discretion to extend the period in which an appeal may be commenced. Those four principal matters are, first, the length of the delay; secondly, the reasons for the delay, thirdly; whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent, although it was accepted that in a particular case there might be additional factors.

 

19 In this case, Match Projects submits that there are additional factors which should be taken into account in exercising the discretion to extend time, namely

 

(a) the public interest in the clarification of the law relating to

 

(i) the ambit of the right of review under s 46 following the recent decision of the Supreme Court of Western Australia in O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2009] WASC 19 ( O'Donnell Griffin ); and

 

(ii) the strictness with which the requirements of s 26 should be applied; and

 

(b) Arccon's own conduct.

 

The length of delay

 

20 It is Match Projects' case that the adjudicator's determination was invalid because, contrary to s 36, it is contended that the adjudicator's decision failed to state the date on or before which the amount determined to be payable was to be paid. Further, if the determination was capable of being validated by an application of the slip rule procedures provided for under s 42(2), that occurred after the time period permitted for the making of the determination, as extended with the consent of the parties, with the result that it is submitted that the application is to be taken to have been dismissed under s 31(3).

21 Arccon disputes that the determination did not insert a date for payment, and indeed, it is selfevident that it included a date, being 16 September 2008, which, of course, predated the date of the determination of 2 December 2008. Arccon submits that this was an error capable of being remedied under the slip rule procedures and therefore the validity of the determination is not affected.

 

22 The determination of the above issue forms part of the substantive application because one of the alternative forms of relief sought is dependent upon the Tribunal finding that the application is to be taken to have been dismissed pursuant to s 31(3) as it was not determined within the prescribed time.

 

23 In my view, this aspect of the application is not susceptible to the Tribunal's jurisdiction because the decision to amend the award relates, on any basis, to considerations which do not form part of a decision under s 31(2)(a). There is nothing within the O'Donnell Griffin decision which suggests that the Tribunal has power to review a dispute about whether or not an adjudication application is deemed to be dismissed under s 32(3). As appears in s 46(1), an application may be made to the Tribunal for the review of a decision made under s 31(2)(a). At [126] of the O'Donnell Griffin decision, Justice Beech held that in his opinion:

 

There will be a 'decision' under s 31(2)(a) for the purposes of s 46(1), if the adjudicator:

 

(a) dismisses the application without making a determination of its merits in reliance on s 31(2)(a); or

(b) rejects a submission of a respondent to an adjudication application that the application should be dismissed under s 31(2)(a).

 

24 As discussed further below, in considering whether there is an arguable case for review, Match Projects submits that a judicial member of the Tribunal has power to make a declaration so as to avoid the operation of s 46(2), which may otherwise have the perverse result that the adjudicator would be required to consider the merits of an application, after the Tribunal had determined there was no jurisdiction to do so. In response to questioning from the Tribunal, counsel for Match Projects endeavoured to develop an argument that it would be open to make a declaration that the adjudication application is deemed to be dismissed under s 32(3).

 

25 Accepting for present purposes that a judicial member has the power in an appropriate case to make a declaration, I do not accept that the power is open to be exercised other than in relation to a matter relevant to the decision under review. The Tribunal's jurisdiction is enlivened only by an aggrieved person lodging an application for review of a decision made under s 31(2)(a). If, as contended by Match Projects, the effect of what occurred is to invalidate the determination, that is a matter which will inevitably have to be determined by the District Court which is seized with the enforcement proceedings commenced before it. Therefore, on the facts of this case it would be particularly inappropriate to consider making any declaratory order. But, in any event, I do not consider it would be open to do so in respect of a matter which does not fall to be considered within the limited review powers granted to the Tribunal: see ITQ Pty Ltd and Hyde Park Management Ltd [2008] WASAT 66 at [36] .

 

26 The Tribunal's jurisdiction is limited to the express powers of review granted under s 29(3) (disqualification for conflict of interest), s 46(1) and s 49 (decision not to register adjudication or to cancel registration). I consider that in these proceedings the Tribunal is bound to accept the validity of the determination subject to the argument about the meaning and effect of 'a decision made under s 31(2)(a)(i) as referred to in s 46(1)'. Therefore the period of delay is to be calculated from 2 December 2008, that is, a period of approximately seven weeks.

 

27 Further, I consider it is appropriate that any extension of time be limited to proposed grounds of review which are arguable on the merits and also arguably within jurisdiction. There can be no injustice for any extension of time to be limited in this way. The application to extend time is refused in respect of this issue.

 

28 Match Projects relies on the O'Connor decision in which Barker J described a delay of just over five weeks as being 'borderline'. Arccon criticises that approach by reference to the different legislative regimes applying. O'Connor was dealing with an application under the Town Planning and Development Act 1928 (WA) (TP Act). It is submitted that the planning approval process, by its nature, is a slow process where the quick processing of decisions is not a vital factor to achievement of the objects of the legislation. By contrast, reference is made to the clear purpose of the CC Act which is to adjudicate payment disputes in relation to construction contracts fairly and as quickly, informally and inexpensively as possible (see s 30 of the CC Act). I accept this submission and in the circumstances regard a sevenweek, or alternatively, if the above reasoning is wrong, a fiveweek delay, as being a lengthy delay against a legislative regime which provides for payment disputes to be resolved, subject to the parties consenting to an extension, within 28 days of commencement of the adjudication. Unless, therefore, there are sufficiently cogent countervailing factors, a delay of either seven or five weeks in lodging an application for review under s 46(1) of the CC Act should generally result in a refusal of an application to extend time.

 

Reasons for delay

 

29 In Diploma Construction Pty Ltd and Esslemont Nominees Pty Ltd [2006] WASAT 350 ( Diploma ) the Tribunal held that the only decision reviewable under s 46 was a decision to dismiss the adjudication on any of the grounds referred to in s 31(2)(a). In this case, the adjudicator considered Match Projects' submissions that the application be dismissed on one of those grounds, namely, that the application had not been prepared and served in accordance with s 26, but rejected those submissions and proceeded to determine the merits of the payment dispute. Accordingly, when the adjudication decision was published on 2 December 2008, and amended on 16 December 2008, there appeared to be no right of review available to Match Projects.

 

30 On 6 February 2009, Beech J handed down the O'Donnell Griffin decision in which His Honour expressed an opinion that a right of review also lay under s 46 where the adjudicator rejects a submission that an application should be dismissed under s 31(2)(a). The application for review was lodged 11 days later.

 

31 I regard this as a good explanation for the delay.

 

Whether there is an arguable case for review

 

32 Match Projects submits that there are four bases upon which an arguable case can be demonstrated. Firstly, that by virtue of the O'Donnell Griffin decision the Tribunal is empowered under s 46 to review the adjudication decision. Secondly, that Arccon failed to comply with the service requirements of s 26 because the adjudication application was not served on each other party to the contract (s 26(1)(b)). Thirdly, that the adjudicator exceeded his jurisdiction by purporting to make a determination in respect of a party which is not a party to the contract. Fourthly, by reason of the adjudicator's failure to state the date by which the determined amount was to be paid, the adjudication determination is deemed to have been dismissed under s 31(3) and the adjudicator's attempt to rectify the failure was ineffective. For the reasons given above, in considering the length of the delay, the fourth basis is rejected.

 

The right to review the adjudicator's failure to dismiss the adjudication application

 

33 Match Projects relies on the O'Donnell Griffin decision. Arccon submits that O'Donnell Griffin is wrongly decided and submits that Beech J was not referred to s 46(2) of the CC Act. It is submitted that s 46(2) cannot be given any effective meaning if O'Donnell Griffin is correctly decided. This is because s 46(2) provides that if, on a review, a decision made under s 31(2)(a) is set aside and, under s 29(3)(c)(i) or s 29(3)(c)(ii) of the SAT Act, is reversed, the adjudicator is to make a determination under s 32(2)(b) within 14 days after the date on which the decision under s 31(2)(a) was reversed, or any extension of that time consented to by the parties. Section 32(2)(b) requires that the adjudication application be determined on its merits, which on its face appears a perverse requirement if the Tribunal has upheld a review on the basis that the adjudication wrongly failed to dismiss the application on any of the grounds referred to in s 32(2)(a).

 

34 In its written submissions in response, Match Projects addresses Arccon's above argument by submitting that the Tribunal's powers on a review of a decision are not limited to setting aside and reversing the decision, as referred to in s 46(2). Reference is made to s 29(3) of the SAT Act which sets out the Tribunal's powers on review in full and which expressly empowers the Tribunal, in any case, to make any order the Tribunal considers appropriate. It is submitted that a judicial member of the Tribunal has power under s 91 of the SAT Act to make a declaration, and that accordingly, as I understand the submission, the Tribunal need not set aside and reverse the decision so as to activate the prescription within s 46(2) requiring that the adjudicator determine the merits of the decision.

 

35 Arccon also submits (although in the context of dealing with the reasons for the delay) that the Diploma decision must still be applied by the Tribunal. Reliance is placed on The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304 ( City of Joondalup ) at [31] where the then President, Barker J said that a member of the Tribunal should follow a decision of another member of the Tribunal and at [30] that the Tribunal is not bound to follow a decision of a single judge of the Supreme Court.

 

36 I do not accept that these submissions accurately reflect the effect of the City of Joondalup decision. Justice Barker did state at [31] that for reasons of comity and consistency, a member of the Tribunal should also generally follow a decision of another member of the Tribunal (or a member of a former tribunal which SAT has replaced) that is in point, unless satisfied that the earlier decision was clearly in error (emphasis added). Further, the reference to the Tribunal not being bound to follow a decision of a single judge of the Supreme Court was prefaced upon the constitution of that Tribunal, which of course included Barker J, then a judge of the Supreme Court. In any event, that view has since been held by the Court of Appeal to be incorrect: see Mustac v Medical Board of Western Australia [2007] WASCA 128 at [47]  - [50], inclusive.

 

37 It is clear to me that the true effect of the O'Donnell Griffin decision requires careful analysis to determine its full effect in relation to the ambit of the review available under s 46(1) in this case and the practice of the Tribunal. If the decision can be demonstrated, after full argument, to be correct, then on any basis the Tribunal should obviously follow it. But even if Arccon is able to argue persuasively that the O'Donnell Griffin decision is incorrect, there is a question whether the Tribunal is bound to follow it. I therefore conclude that this raises an arguable issue.

 

Failure to serve

 

38 Under s 31(2) an adjudicator must dismiss an adjudication application if the application has not been prepared and served in accordance with s 26. Section 26 provides that to apply to have a payment dispute adjudicated, a party to the contract, within 28 days after the dispute arises, must, relevantly, serve it on 'each other party to the contract'.

 

39 The term 'party' is defined, in relation to an adjudication, to mean the applicant and any person on whom an application for adjudication is served, and in relation to a construction contract, to mean a party to the contract (s 3).

40 Arccon submits that at all times and on other projects, Match Projects held itself out as having full authority to act as the agent of the owners. Reference is made to another project, the Maymont Project, in which it is stated that Match Projects accepted service of an adjudication application. It is not clear what evidence may have been before the adjudicator relevant to these submissions.

 

41 In the alternative, it is asserted that Match Projects executed the contract and therefore is the other party to the contract for the purposes of s 26. It is submitted that Match Projects is estopped from denying its authority to accept service of the adjudication application as it has accepted service in the same circumstances previously. It is further submitted that by cl R1.1 of the contract, Match Projects is specifically authorised to receive documents on behalf of the owners. The clause expressly provides that a person may only deliver a document to another party under the contract by delivering it to the person representing the party by hand or mail at the address shown in item 1 of the introduction. Item 1 of the introduction describes the owners' representative as being Lloyd Clark. It is common cause that Mr Clark is a director of Match Projects.

 

42 The adjudicator appears to have concluded, firstly, that the other party to the contract, on its proper construction, is Match Projects (para 51 of the determination) and, alternatively, that Match Projects was an agent for the owners 'invested with the requisite statutory power to allow effective service' by Arccon based on an application of provisions of the Corporations Act 2001  (Cth). The alternative finding appears to be particularly doubtful, given that half of the owners, as set out in Sch 14 to the contract, are not corporations.

 

43 Section 31(2)(b) provides that (if the application has not been dismissed under s 31(2)(a)) the adjudicator must determine on the balance of probabilities whether any party to the payment dispute is liable to make a payment . Section 33 empowers the adjudicator to determine that interest is to be paid by a party to a payment dispute who is liable to make a payment. In my view, there is an arguable case that the party under the contract on whom the adjudication application must be served is the party liable to make the payment dispute, being the owners named in Sch 14.

 

44 Match Projects also submits that procedural fairness was denied it in respect of reliance by the adjudicator on various legal authorities and the Corporations Law, relating to this issue. It is not necessary to address those submissions (which were disputed by Arccon) because once it is accepted that an arguable issue exists on the merits of the question, Match Projects will have the opportunity to advance all relevant submissions on the issue.

 

Determination in excess of jurisdiction

 

45 This proposed basis for review raises the same issues as the second basis above, namely the alleged failure to serve on the above party to the contract, which requires a determination of who is the other party to the contract. However, if it were to be held that service was properly effected, this basis takes a further step forward by asserting that in any event, the determination has to be made against the owners. The determination in this case requires the respondent to make payment.

 

46 In my view, this additional aspect does not form part of the matters falling for consideration in the review of a decision made under s 31(2)(a) for the same reasons as given above in relation to the length of the delay and the inability of the Tribunal to address whether an adjudication application is deemed to be dismissed under s 31(3). Those are matters which may be addressed in the District Court enforcement proceedings.

 

47 Any extension of time should therefore not include this proposed basis of review which I do not consider to be arguable.

 

Prejudice to the respondent

 

48 Match Projects submits that any delay in the enforcement of the determination will be compensated by an award of interest if Arccon is ultimately successful.

 

49 I do not understand Arccon to dispute that it will be compensated by interest but it asserts that the actions of Match Projects have frustrated the purpose of the CC Act in preventing Arccon from having access to money owing to it. Arccon submits that the imperative of keeping money flowing in the contracting chain continues to apply after practical completion and during the maintenance period. I accept this to be so, but in the context of consideration of prejudice, it is relevant that enforcement of the adjudication determination is being opposed in the District Court proceedings. It is likely that the proceedings will be finalised in this Tribunal before the proceedings in the District Court are determined. If an adjudication has been properly determined in compliance with the CC Act, there will usually be no basis upon which to oppose enforcement. In this matter, there are arguable issues raised in support of a review. Arccon will not suffer any real prejudice in the event that time is extended for the lodging of the application for review.

 

Other considerations

 

Arccon's conduct

 

50 Match Projects submit that Arccon conducted itself as set out below so as to cause delay and that should operate in favour of the grant of the application:

 

  1. a six-month delay in the making of the claim for payment after practical completion;

  2. the agreement to a five-week extension of time for the adjudicator to make the determination;

  3. the request made to the adjudicator to amend the determination resulting in a two-week delay; and

  4. the failure to commence District Court proceedings until a further four weeks after the amended determination was handed down.

 

51 In my view, the only point raised with any potential merit is the first; that there was a six-month delay in making the payment claim. There may be many reasons why it was not practicable to make a claim at any significantly earlier date, but Arccon has not responded to this point nor has any information been provided to explain the delay. I accept, therefore, that this is a factor in favour of the grant of the application, although I do not consider it to be a significant factor.

 

52 In relation to all the other conduct issues, I accept that Arccon acted appropriately and without delay. It had no real choice but to agree to the adjudicator's request for an extension of time to avoid the adjudication being delayed. If the adjudicator had not then accepted the appointment, there would have been a delay in another adjudicator being appointed. The likelihood would have been that any adjudication commenced would not have been completed in time and it would have been deemed to be dismissed under s 31(3) with the result that the entire process would have had to commence again. I am also satisfied Arccon responded appropriately in requesting the adjudicator to amend the determination once Match Projects queried the validity of the decision and that Arccon proceeded without delay to attempt to enforce the determination in the Supreme Court and later the District Court.

 

Public interest factors

 

53 Notwithstanding Arccon's submissions to the contrary, I accept that a relevant factor in the consideration of this particular application to extend time is the public interest in clarifying the ambit of the right of review under s 46 and the strictness, or manner, in which it is possible to comply with the service requirements of s 26. However, I consider these factors are secondary in importance to the four principal factors referred to in the O'Connor decision.

 

Conclusion

 

54 Taking all factors into account, I consider that this is an appropriate matter for the grant of an extension of time for the bringing of the application in respect of the relief sought, save that which is based on a determination that the adjudication application is to be taken to have been dismissed pursuant to s 32(3) of the Act and on the adjudicator having exceeded his jurisdiction in determining that the respondent is to make payment.

 

55 The relief sought in respect of the alleged deemed dismissal is expressed in proposed Order 4 of the section of the application under the heading 'Decision Sought'. There is no particular order sought which clearly relates only to the excess of jurisdiction argument. Order 1 seeks an extension of time. Order 2 seeks to have the determination set aside and substituted with a decision to dismiss for failure to serve in accordance with s 26. Order 3, in the alternative to Order 2, seeks a variation of the determination by deleting the determination that Match Projects pay Arccon and replacing that with a decision that the adjudication be dismissed without consideration of its merits. Order 3 is capable of being justified as an alternative to Order 2 based on the failure to serve argument. The extension granted must be understood on this basis. It does not apply to the excess of jurisdiction argument based on the determination requiring Match Projects to pay rather than the Sch 14 owners. The extension of time will be limited, therefore, to the relief set out in Orders 2 and 3 of that section of the application.

 

56 In arriving at this conclusion, the factors which have weighed heavily in favour of the grant of the application are:

 

  1. that the delay in bringing the application is entirely attributable to the reasonable conclusion that no right of review lay until the O'Donnell Griffin decision was handed down on 6 February 2009;

  2. that Match Projects have acted with all due expedition in making the application for review; and

  3. that, in the unusual circumstances of this case, it is unlikely that any steps can be taken by Arccon to enforce the determination prior to the determination of the proceeding in the Tribunal, so that Arccon should suffer no real prejudice as a consequence of the grant of the extension of time. At the initial directions hearing before the Tribunal on 26 February 2009, the matter was programmed to a final hearing, which has been set down on 18 May 2009, on the basis that the programming orders would be set aside and the date of final hearing vacated, if this application for an extension of time was refused.

 

57 Having regard to all of the circumstances of the matter, I am satisfied that strict compliance with the time limits will work an injustice upon Match Projects and that it is appropriate to grant an extension of time, subject to the limitation expressed.

 

58 It is noted that the orders sought in the application are not consistent with Match Projects' written submissions in response to the respondent's submissions, in which reliance is placed on the ability of a judicial member of the Tribunal to make a declaratory order rather than an order setting aside and substituting or reversing the adjudicator's decision. Those submissions were made, as I understand it, to demonstrate that it was not necessary for s 46(2) to operate. The orders sought by Match Projects, as currently expressed, may only be permissible under s 46(2). If Match Projects wish to maintain the application for the orders as currently expressed, that matter will no doubt be addressed in the final hearing, but otherwise, consideration might be given to an application for leave to make an appropriate amendment to the orders sought in the application.

Order

 

59 For the above reasons, an order will issue as follows.

 

  1. An extension of time is granted for the making of this application for the orders sought as set out in the application lodged on 17 February 2009 under the section 'Decision Sought', save in respect of Order 4 thereof.

 

  1. The application for an extension of time for the making of this application is refused in respect of the relief sought in Order 4 of the application.

 

I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR C RAYMOND, SENIOR MEMBER