CITATION: James Trowse Constructions Pty Ltd v MG Constructions (QLD) Pty Ltd [2012] QCAT 42
PARTIES: James Trowse Constructions Pty Ltd (Applicant/Appellant)
v
MG Constructions (QLD) Pty Ltd (Respondent)
APPLICATION NUMBER: BDL019-11
MATTER TYPE: Building matters
HEARING DATE: 10 October 2011
HEARD AT: Brisbane
DECISION OF: John Bertelsen, Adjudicator
DELIVERED ON: 6 January 2012
DELIVERED AT: Brisbane
ORDERS MADE: The application is dismissed.
CATCHWORDS: Adjudicator’s decision – payment in accordance with decision – post decision options
APPEARANCES and REPRESENTATION (if any):
APPLICANT: James Trowse Constructions Pty Ltd was represented by Andrew Trowse, Director
RESPONDENT: MG Constructions (QLD) Pty Ltd was represented by Marc Garcia, Director
REASONS FOR DECISION
[1] The application filed 31 January 2011 seeks the overturning of the decision of an Adjudicator made pursuant to section 29 of the Building and Construction Industry Payments Act 2004 (BCIPA Act), the refund of the Adjudicator’s fees and minor interest paid together with interest on sums claimed.
Background and evidence
[2] James Trowse Constructions Pty Ltd (JTC) as head contractor for the construction of St Francis College Language and Hearing Centre and Assembly Hall at 64 Julie Street, Crestmead entered into a subcontract with MG Constructions (QLD) Pty Ltd (MGC) in or about January 2010 for supply and installation of concrete placement.
[3] The works subject of the contract were carried out and completed during the course of 2010. MGC served JTC with a payment claim for $11,986.17 dated 29 November 2010 pursuant to section 17 of the BCIPA Act. In response JTC served MGC with a payment schedule dated 30 November 2010 (section 18) which schedule stated JTC’s reasons for withholding payment. Thereafter on or about 10 December 2010 MGC made an adjudication application.
[4] The respondents’ payment schedule disputed MGC’s variation claim for footings and ground slab at top of stairs and retaining wall. The monetary dispute was minor but the appointed adjudicator awarded in favour of MGC. Of greater monetary significance was the dispute over snake paths adjacent to the assembly hall. The Adjudicator once again ruled substantially in favour of MGC.
[5] JTC’s schedule included a counter claim for back charges being the cost of rectification works in respect of ramps to doorways and repairs to front stairs.
[6] The Adjudicator was not satisfied that the back charges claim was supported and it was denied. Taking into account his various findings the Adjudicator summarised the contract position as he saw it and awarded MGC $11,600.02 inclusive of GST.
[7] Pursuant to section 26 BCIPA Act, the Adjudicator’s decision was given in writing with reasons nominating the sum to be paid by JTC to MGC.
[8] The Adjudicator nominated 4 January 2011 as the date for payment of the Adjudicator’s amount of $11,600.02.
[9] Both JTC and MGC acknowledged at hearing that full payment of $11,600.02 had been made by JTC to MGC and that the Adjudicator’s and Authorised Nominating Authority (ANA) fees of $1,100.00 had been paid by JTC.
[10] Pursuant to section 30 BCIPA Act if the Adjudicator’s amount was not paid the claimant MGC would have been entitled to request an adjudication certificate and pursuant to section 31 BCIPA Act file that adjudication certificate as a judgment for a debt to be enforced in a court of competent jurisdiction. That section further states that if the respondent (JTC) commenced proceedings to have any such judgment set aside then it was “required to pay into the Court as security the unpaid portion of the adjudicated amount pending the final decision in these proceedings.”
[11] Quite apart from the fact that the adjudicated amount has been paid in full the proper course of action to be taken by JTC in being dissatisfied with the Adjudicator’s decision was to make an application to the Court to have judgment against it set aside (section 31 BCIPA Act).
[12] The application to this Tribunal is styled “application for commercial building dispute”. However, in describing what it seeks from the Tribunal the applicant JTC primarily applies for the overturn of the BCIPA Act Adjudicator’s decision and refund of Adjudicator’s fees.
[13] The only decision that the Tribunal is competent to review in terms of the BCIPA Act is referred to at section 97 of that Act. That refers to the review of an original decision under part 4 of that Act which decision (the original decision) was required to be internally reviewed in the first instance. Part 4 is concerned with administration i.e. registration of authorised nominating authorities and Adjudicators and the renewal, amendment, suspension, cancellation and surrender of such registration. The BCIPA Act therefore is not an enabling Act for the purpose of reviewing the Adjudicator’s decision.
[14] In any event the Tribunal finds the Adjudicator’s decision in the firs instance substantially correct. The snake paths as constructed by the respondent included paths additional to that originally envisaged in the respondent’s quote. The finish to the stairs was not stated in the specifications/drawings. The staircase as constructed by the respondent did require some patching but the respondent was not given the opportunity to do so. Rather, the applicant’s architect directed demolishing/reconstruction or tiling. A smooth aesthetically pleasing finish may well have been achieved by the respondent without such drastic measures. Regarding the ramping of doorways the Tribunal accepts the respondent’s evidence that the concrete slab was formed and finished as instructed by the site foreman; that no defects list was provided in respect of same at the time and that it was only after the event that ramping was raised.
[15] There are no new matters raised in this application which have not already been the subject of determination in the Adjudicator’s decision.
[16] Section 100 of the BCIPA Act provides that in any proceeding before a Court or a Tribunal in relation to any matter arising under a construction contract, the Court or Tribunal “must allow for any amount paid to a party to the contract under or for part 3 in any order or award it makes in those proceedings”. In this instance there is effectively not a proceeding before a Court or a Tribunal in relation to any matter arising under a construction contract other than what has already been subject of an Adjudicator’s decision under part 3 of the BCIPA Act.
[17] As the applicant was never competent to make this application the Tribunal is not competent to determine it.
Order
[1] The application is dismissed.