SUPREME COURT OF QUEENSLAND

CITATION: Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd and Anor (No 2) [2014] QSC 180

PARTIES: CONVEYOR & GENERAL ENGINEERING PTY LTD

ACN 091 865 235

(Applicant)

v

BASETEC SERVICES PTY LTD

ACN 086 798 361

(First Respondent)

and

JOHN SAVAGE (ADJUDICATION REGISTRATION

NO J1057073)

(Second Respondent)

FILE NO/S: BS 9535 of 2013

DIVISION: Trial Division

PROCEEDING: Originating Application

ORIGINATING

COURT: Supreme Court of Queensland

DELIVERED ON: 11 August 2014

DELIVERED AT: Brisbane

HEARING DATE: Written submissions

JUDGE: Philip McMurdo J

ORDER: It is ordered that the first respondent pay the applicant’s costs of the proceeding.

CATCHWORDS: PROCEDURE – COSTS – GENERAL RULE- COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where the applicant was entirely successful – where the decision of the adjudicator under the Building and Construction Industry Payments Act 2004 (Qld) was declared to be of no effect – whether a subsequent adjudication should affect the costs order - whether costs should follow the event.

Building and Construction Industry Payments Act 2004 (Qld)

COUNSEL: P D Tucker for the applicant

P A Heywood-Smith QC for the first respondent

No appearance for the second respondent

SOLICITORS: Porter Davies Lawyers on behalf of the applicant

Amanda Forsyth as in-house counsel for the first respondent

[1] In this proceeding, I declared that a decision of an adjudicator under the Building and Construction Industry Payments Act 2004 (Qld) was of no effect. The substantial issue was whether, and if so when, the adjudication application had been served upon the present applicant. I held that the date of service was later than that identified by the adjudicator, and that consequently, the adjudicator was wrong to have refused to receive submissions on behalf of the present applicant. This denial of natural justice required the adjudicator’s decision to be set aside.

[2] The applicant was thereby entirely successful. But the first respondent submitted that the question of costs should await the outcome of a subsequent adjudication, in which an adjudicator would be asked to determine substantially the same questions as those which had been determined by the second respondent here. Subsequently, I was informed that the outcome of that further adjudication was identical to that in the decision which I set aside. The first respondent submits that this is a relevant factor for the costs of this proceeding. That submission would have more force if an adjudicator’s decision under this Act constituted a conclusive determination of the merits of the parties’ contractual dispute.

[3] The first respondent also argues that the problem came from a fault of the adjudicator rather than of the first respondent. But there was some fault on its part because the use of the Dropbox facility resulted in different parts of the application and other material being served at different times. More importantly, it was the first respondent which pressed for the validity of this decision of the adjudicator and which put the applicant to the task of proving that it was given without the provision of natural justice.[4] I am not persuaded that there is any proper reason to depart from the ordinary rule that costs should follow the event. The first respondent will be ordered to pay the applicant’s costs of the proceeding.