[2014] WASAT 135

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT : CONSTRUCTION CONTRACTS ACT 2004 (WA)

CITATION : MRCN PTY LTD T/AS WESTFORCE CONSTRUCTION and ABB AUSTRALIA PTY LTD

[2014] WASAT 135

MEMBER : DR B DE VILLIERS (MEMBER)

HEARD : 21 AUGUST 2014

DELIVERED : 5 SEPTEMBER 2014

PUBLISHED : 13 OCTOBER 2014

FILE NO/S : CC 337 of 2014

BETWEEN : MRCN PTY LTD T/AS WESTFORCE CONSTRUCTION

Applicant

AND

ABB AUSTRALIA PTY LTD

Respondent

Catchwords:

Payment dispute - Date upon which payment dispute arose - Balance of probabilities - Ongoing commercial discussions about an invoice do not constitute a payment dispute - Payment dispute must be clear and unequivocal

Legislation:

Construction Contracts Act 2004 (WA), s 3, s 6, s 6(a), s 26, s 46

State Administrative Tribunal Act 2004 (WA), s 66, s 67

Result:

The decision of the adjudicator that the payment dispute arose on 10 December 2013 is set aside

The payment dispute is determined to have arisen on 2 January 2014

The matter is remitted to the adjudicator

Summary of Tribunal's decision:

The applicant sought a review pursuant to the Construction Contracts Act 2004 (WA) of a decision of the adjudicator that a payment dispute arose on 10 December 2013. The Tribunal had decided in a previous decision in the same matter that additional material could be taken into account in order to determine when the payment dispute arose (see MRCN Pty Ltd t/as Westforce Construction and ABB Australia Pty Ltd [2014] WASAT 59).

The respondent contended that the payment dispute arose on 10 December 2013. The respondent said that its representative at the meeting declared the payment dispute. The applicant contended that the meeting that was held on 10 December 2013 was convened for the purpose of discussing the payment claim but that no payment dispute had been declared. The applicant said that the payment dispute arose on 2 January 2014 when the respondent failed to pay the invoiced sum.

The Tribunal found that there was insufficient evidence to support the contention of the respondent that the payment dispute arose on 10 December 2013. The Tribunal found that although the meeting briefly considered the payment claim, no payment dispute was declared. The Tribunal emphasised that the declaration of a payment dispute must be clear and unequivocal so as to put the other party on notice of the dispute. The Tribunal found that the payment dispute arose on 2 January 2014 when the respondent failed to pay the invoice. The matter was remitted to the adjudicator to determine the merits of the dispute.

The reasons for decision were handed down orally. What follows is an edited version of those reasons.

Category : B

Representation:

Counsel:

Applicant : Mr M Murray with Mr J Smith

(Acting as Agents)

Respondent : Mr G Steinepreis

Solicitors:

Applicant : N/A

Respondent : Squire Patton Boggs (AU)

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

Blackadder Scaffolding Services (Aust) Pty Ltd and Mirvac Homes (WA) Pty Ltd [2009] WASAT 133

MRCN Pty Ltd t/as Westforce Constructions and ABB Australia Pty Ltd [2014] WASAT 59

REASONS FOR DECISION OF THE TRIBUNAL :

Introduction

1 This matter concerns a question on which a payment dispute arose pursuant to s 6 of the Construction Contracts Act 2004 (WA) (CC Act). The applicant says the dispute arose on 2 January 2014 when the respondent failed to pay an invoice, while the respondent says the dispute was declared at a meeting that took place on 10 December 2013. If the dispute arose on 10 December 2013, the application for adjudication was brought out of time as has been found by the adjudicator. If, however, the payment dispute arose on 2 January 2014, the application for adjudication was brought within time and should be remitted to the adjudicator.

The issue

2 The issue for the Tribunal to determine is the date upon which the payment dispute arose for invoice 19861, dated 2 December 2013, in regard to variation claim 1.65 (variation claim). The adjudicator found that the date of the payment dispute was 10 December 2013.

Background

3 MRCN Pty Ltd t/as Westforce Construction (applicant) seeks a review of the decision of the adjudicator made under the CC Act that the payment dispute arose on 10 December 2013. The adjudicator determined that Mr Sandhu, a representative of ABB Australia Pty Ltd (respondent) rejected or disputed the variation claim at a meeting between the representatives of the parties on 10 December 2013.

4 There were two preliminary questions before the Tribunal prior to it determining the issue the subject of this proceeding.

5 The first preliminary question was whether additional material could be taken into account upon a review of the adjudicator's decision.

6 The Tribunal found in the affirmative in reasons published in MRCN Pty Ltd t/as Westforce Constructions and ABB Australia Pty Ltd [2014] WASAT 59. As a result of that finding, the Tribunal gave both parties the opportunity to submit additional material and submissions, to call witnesses and to arrange for witnesses who had given statements to be available for cross-examination.

7 The second preliminary question was whether I, as the presiding member, should recuse myself as a result of the finding that was made in regard to the first preliminary question.

8 I found that the grounds identified by the respondent to support an application for recusal on the basis of apprehended bias were inadequate. The application for recusal was dismissed on 4 August 2014. The reasons for decision were handed down orally.

9 The principal issue was therefore set down for a hearing on 21 August 2014.

10 The Tribunal took all of the information before it into account in making its decision in regard to the issue under consideration in this proceeding.

11 It is noted that the applicant, regardless of the silence of the respondent, made available its witnesses, Messrs Murray, Smith and Best, to be cross-examined. Mr Teng declined the opportunity to cross-examine any of those witnesses. This is regardless of the Tribunal cautioning Mr Teng that failure to cross-examine means, in essence, that the evidence may remain unchallenged.

12 The Tribunal confirmed with the witnesses that their statements of evidence were truthful and that it was an offence to give false or misleading evidence to the Tribunal, and then put several questions to each of the witnesses.

Statutory framework

13 The statutory framework within which the dispute is determined can be described as follows: s 46 of the CC Act provides that a person who is aggrieved by a decision of an adjudicator may seek a review of the decision from the Tribunal. The review is de novo and the Tribunal may invite material in addition to that which was before the adjudicator. The Tribunal has the same powers, functions and discretions as those exercised by the adjudicator.

14 The Tribunal may affirm the decision of the adjudicator, vary the decision, or set aside the decision and substitute it with its own decision. If the decision of the adjudicator is set aside or reserved, the adjudicator must, within 14 days after the reversal, determine the question before it. Section 6 of the CC Act provides that a payment dispute arises relevantly:

… if -

(a) by the time when the amount claimed in a payment claim is due to be paid under the contract, the amount has not been paid in full, or the claim has been rejected or wholly or partly disputed[.]

15 Section 26 of the CC Act provides that to apply for adjudication an application must be lodged within 28 days after the dispute arises.

Summary of facts

16 The issue for the Tribunal to determine is the date upon which the payment dispute arose in regard to the variation claim.

17 The facts giving rise to the application can be briefly summarised as follows: the applicant and the respondent entered into an agreement whereby the applicant was required to construct civil works and electrical installation for the respondent who, in turn, was contracted to design and construct a substation for the respondent's client, Rio Tinto.

18 This dispute relates to the electrical installation contract between the parties dated 17 April 2013 (Exhibit 1, Volume 4). The dispute arises from the scope of work that was required in relation to so-called cutover works. According to the applicant, 'cutover' refers to the energising of the completed substation and connection to the live power grid. The parties disagree as to what works were included in the contract and what works were part of a variation.

19 The parties agree that some of the work was as a result of a variation, but they disagree about the extent of the work and the quantum payable.

20 After several meetings to discuss what payment the applicant was entitled to, the applicant submitted to the respondent the variation claim on 19 November 2013. A formal invoice for the variation claim, invoice 19861, was submitted to the respondent on 2 December 2013. It is not disputed by the parties that this is the claim date for the purposes of s 3 of the CC Act.

21 Meetings were held on 5 and 6 December 2013 between the applicant and the respondent to discuss the variation claim as well as, I am told, up to 25 other variations.

22 A meeting took place between the representatives of the applicant, Messrs Smith, Clark and Best, and the respondent's representatives, Mr Sandhu and Mr Chen, on 10 December 2013, to discuss the variation claim as well as several other variations.

23 Some variations had been invoiced and some were awaiting assessment from the respondent before being invoiced. It is contended by the respondent, but denied by the applicant, that the payment dispute was declared at this meeting, purportedly, when Mr Sandhu rejected or disputed the variation claim.

24 On 11 December 2013, the applicant's Mr Smith sent an email to the respondent's Mr Sandhu asking:

Can you advise ABB[']s position in relation to the following variations for the West Angelas project variation 1.65 cable cutover. Please respond to this email by close of business Thursday, 12 December 2013.

Mr Sandhu did not reply to this letter.

25 On 16 December 2013, the applicant wrote to the respondent and said as follows:

Please be advised that unless we hear from you by close of business 18 December 2013, we will understand that the invoice variations in table 1 above –

and this includes variation 1.65:

… are disputed by ABB and we will proceed to adjudication to compel payment from ABB.

26 The respondent replied on 17 December 2013 by inviting the applicant to attend a meeting on 18 December 2013 to discuss 'upcoming claims'.

27 A meeting between representatives of the applicant and the respondent took place on 18 December 2013.

28 A further meeting took place between the applicant and the respondent's representatives on 10 January 2014.

29 The respondent informed the applicant on 21 January 2014 that the invoice for the variation claim was rejected.

30 The claim for adjudication of the payment dispute in relation to the variation claim was lodged on 24 January 2014.

31 The adjudicator dismissed the application on 14 February 2014 on the grounds that it was brought out of time. The adjudicator found that the payment dispute arose on 10 December 2014 and that the application for adjudication was therefore lodged out of time.

Contentions

32 The contentions of the applicant can be summarised as follows:

1) The payment dispute arose on 2 January 2014, which is 30 days after the invoice had been issued and the respondent failed to pay; or, in the alternative, on 21 January 2014, when the respondent rejected the variation claim in writing. In both scenarios the application for adjudication is in time.

2) On 10 December 2013, the invoice for the variation claim was not rejected in whole or disputed in part by the respondent. The meeting of 10 December 2013 was part of ongoing discussions between the applicant and the respondent to assess the variation claim and to find a commercial agreement to what is owed by the respondent.

3) The communications and meetings following 10 December 2013 affirm that the invoice for the variation claim had not been rejected on 10 December 2013. Neither at any of the subsequent meetings nor in other correspondence did representatives of the respondent indicate that the variation claim had been rejected on 10 December 2013. It was only when the variation claim was formerly rejected in writing on 21 January 2014 that the applicant lodged its adjudication application.

4) The assessment and discussions that took place between the parties in meetings that led to the issuing of the invoice, as well as meetings after the invoice had been issued, were of a commercial nature. The mere absence of acceptance of an invoice, or a disagreement about an invoice or request for additional information concerning the invoice or an assessment of an invoice cannot be construed to be a variation claim rejected or disputed for purposes of the CC Act.

5) The payment dispute arose at the earliest on 2 January 2014, which is 30 days after the variation claim date, or at the latest on 21 January 2014, when the invoice was rejected in writing. Since the application for adjudication lodged on 24 January 2014, the matter was therefore in time and should be determined on the merits by the adjudicator.

33 The contentions of the respondent can be summarised as follows:

1) Prior to the meeting of 10 December 2013 there was considerable disputation about the variation claim. This disputation led to the calling of the meeting of 10 December 2013, which was convened specifically with the aim to resolve the dispute.

2) The payment dispute arose on 10 December 2013 when the invoice for variation claim was rejected or disputed by Mr Sandhu for the respondent. The dispute was declared orally during the hearing. The Tribunal held previously in the matter of Blackadder Scaffolding Services (Aust) Pty Ltd and Mirvac Homes (WA) Pty Ltd [2009] WASAT 133 ( Blackadder ) that a payment claim can be rejected or disputed orally.

3) The meeting of 10 December 2013 was specifically convened to discuss the invoice that was issued on 2 December 2013. The contemporaneous note made by Mr Sandhu confirms that he had said words to the effect that the respondent was not in a position to assess the entire claim; hence, the respondent was not going to prove the claim and it was rejected. Mr Sandhu said words to the effect that the respondent was not going to entertain the claim.

4) The meeting of 10 December 2013 highlighted the very core of the dispute, namely, whether the payment claim was as a result of a valid variation. This disagreement constitutes a dispute for purposes of the CC Act.

5) The apparent willingness of the respondent to receive additional information from the applicant and to continue to meet after 10 December 2013 in regard to the variation claim does not detract from the fact that the dispute arose on 10 December 2013. Nothing prevents parties from meeting to resolve a dispute, even after a dispute has been declared.

6) The witness statements of the representatives of the applicant lack credibility for the following reasons:

• the applicant's witnesses are inconsistent since they said to the adjudicator that the variation claim was not discussed at all on 10 December 2013, and now they say that it had been discussed but only for a few minutes;

• less weight should be given to the evidence of Messrs Smith, Clark and Best because their evidence is contained in witness statements and are not sworn or in statutory declarations; and

• the evidence of Messrs Smith, Clark and Best is not supported by contemporaneous notes.

7) The words used by s 6(a) of the CC Act that a payment dispute arises when a claim is 'rejected or wholly or partially disputed' means that the claim can arise even if there is 'less than an outright rejection of the payment claim'.

8) The payment dispute arose on 10 December 2013, and the finding of the adjudicator that the application was lodged out of time should be affirmed and the application for review should be dismissed.

The Tribunal's consideration

34 On 3 June 2014, the Tribunal explained in its oral reasons in regards to the preliminary issue, why it was of the view that additional material should be allowed into this proceeding for the correct and preferable decision to be made. The Tribunal now has had the benefit of both parties voicing their arguments and presenting their evidence, in full in regard to the meeting of 10 December 2013 as well as any other date upon which the payment dispute could have arisen.

35 While the adjudicator was limited by time, the Tribunal has had the benefit of a properly constituted hearing whereby parties could present their cases in detail supported by evidence and submissions. Ample time was therefore given to the parties to provide additional evidence, documents and submissions to the Tribunal in support of their respective contentions.

36 Although the respondent made written submissions, it decided not to call its witnesses to be cross-examined. The respondent also did not make use of the opportunity to cross-examine witnesses called by the applicant, regardless of the Tribunal extending the invitation to cross-examine after each witness had been introduced to answer questions put by the Tribunal.

37 The Tribunal is called upon to determine, on the balance of probabilities, the date upon which the payment dispute arose. The Tribunal will first make known its finding and then provide its reasons for the decision.

The finding

38 The payment dispute arose on 2 January 2014 when the respondent failed to pay the invoice issued on 2 December 2013 in regard to the variation claim. The finding of the adjudicator that the payment dispute arose on 10 December 2013 is incorrect, and should be revoked and substituted with a decision that the payment dispute arose on 2 January 2014.

39 The application for adjudication was therefore lodged within time. The application for adjudication should therefore be remitted to the adjudicator to be determined on the merits.

Reasons for decision

40 The reasons for this decision are as follows:

1) The Tribunal does not accept that the meeting of 10 December 2013 was set up as a 'make or break' meeting whereby the parties knew beforehand that agreement had to be reached or otherwise a dispute would be declared or that the invoice would be regarded as having been rejected.

Although the meeting was convened as part of ongoing efforts between the parties to assess the variation claim and other claims following this agreement in the weeks preceding the meeting (I am told there were between six and 10 meetings to resolve the dispute), there is insufficient evidence to make a finding that this meeting was the final meeting to conclude discussions and, in the absence of an agreement, a rejection or dispute would be taken to have arisen.

Mr Sandhu says that he said on 5 December 2013 to Mr Murray, the applicant's managing director, during a telephone call, words to the effect that 'we should meet for the outstanding variation claims to be assessed'. From this call, the meeting of 10 December 2013 arose. The Tribunal accepts the evidence of Mr Murray who says the discussions that occurred between 2 December 2013 and 10 December 2013 were part of ongoing commercial discussions aimed to provide additional information to the respondent or, otherwise, to reach agreement about the payment sum.

2) The Tribunal accepts the explanation, given during cross-examination by Mr Smith, for the reasons he said, in initial documents to the adjudicator, that the variation claim had not been discussed on 10 December 2013. Mr Smith's evidence, supported by the evidence of Mr Best, is that there was, indeed, at the start of the meeting of 10 December 2013, a very brief mention and discussion of the variation claim, but the discussion did not last longer than 4 to 5 minutes.

The rest of the day was spent discussing other assessment claims. Mr Smith said that when the applicant submitted its application for adjudication, the time spent on the variation claim was so little in proportion to other items that he did not report on it because he did not think it was relevant for purposes of the application for adjudication.

It was only when the respondent said to the adjudicator that the payment had been refused on 10 December 2013 that Mr Smith realised that he was too cursory in his own explanation of what was said at the meeting of 10 December 2013 about the variation claim.

The Tribunal accepts the evidence of Mr Smith that he was taken by surprise that the meeting of 10 December 2013 would be presented as 'the meeting' when the payment dispute had been declared.

Mr Smith said he would not have thought the respondent would contend the invoice was rejected or that a dispute arose on 10 December 2013 – hence, the oversight on his part.

The Tribunal accepts this explanation. The limited time spent on the variation claim was affirmed by Mr Best in cross-examination. Neither of these witnesses was examined by Mr Teng, albeit that the Tribunal gave him the opportunity to put questions to them.

The Tribunal therefore does not accept the submission of the respondent that the credibility of Mr Smith is under question since he said to the adjudicator that the variation claim had not been discussed on 10 December 2013. The explanation given by Mr Smith for the oversight is credible, it is supported by Mr Best and it is accepted by the Tribunal.

3) The Tribunal accepts the evidence of Mr Smith and Mr Best that their understanding of the outcome of the discussion of the variation claim on 10 December 2013 was that the respondent required additional information in order to properly assess the claim, or that the respondent required additional time to assess the information that had been provided to it.

This is the reason why:

a) the discussion moved so quickly to the next item;

b) the applicant wrote to the respondent the next day to enquire exactly what the respondent sought about the variation claim in addition to material that had already been provided; and

c) several follow-up meetings occurred to reach agreement.

Both Mr Smith and Mr Best said that they made it clear to Mr Sandhu during the meeting of 10 December 2013 that the information he sought was already in the file that was given to him. They were unclear whether he had read it and were uncertain what else was required. They said that Mr Sandhu was known not to read the detail and that that is why they were uncertain as to what more he required to make a decision about the claim.

The explanation given by Mr Smith and Mr Best is consistent with a statement of Mr Sandhu when he said:

I said that if you cannot provide me with evidence it is very hard for me to proceed with the claims.

This is not a rejection of the invoice. It is perhaps an ultimatum that additional material is required; otherwise, the claim may be rejected.

The evidence of Mr Smith and Mr Best is also enhanced by the written evidence of Mr Sandhu when he said:

I said I was happy to assess the claim provided Westforce would provide me with evidence and the breakdown of plan A, B and C, hence their understanding that Mr Sandhu was requesting additional explanation for proper consideration of the invoice.

The events following the meeting of 10 December 2013, namely, the email of 11 December 2013, the meeting of 18 December 2013, and the ultimate written rejection of the variation claim are entirely consistent with the evidence of Mr Smith and Mr Best about the meeting of 10 December 2013.

Mr Teng, who was given the opportunity to cross-examine the witnesses, declined.

The Tribunal finds that their evidence was consistent and credible.

4) The Tribunal does not accept that, at the meeting of 10 December 2013, Mr Sandhu said words to the effect:

ABB is not in a position to assess your entire claim because there is no breakdown and evidence, hence ABB is not going to prove your claim and it is rejected. We are not going to entertain payment of your claim. Mr Sandhu was not made available for cross-examination about his version of events. Mr Chen was also not called to give evidence or to be cross-examined.

Both Mr Smith and Mr Best strongly deny that any such words, or words with such an effect, were spoken by Mr Sandhu. They say, and the Tribunal accepts their evidence, that Mr Sandhu sought more information, that he requested additional evidence so as to be able to assess the invoice, and that the meeting quickly moved to the next item on the agenda.

This version of the meeting is consistent with the events that followed after the meeting. If a dispute had arisen or a rejection had occurred, there is no plausible reason why the applicant would not have filed its application for adjudication immediately but would have waited until 24 January 2014. The applicant, who had been involved in several (I am told nine) adjudication applications against the respondent, would have no reason to delay seeking adjudication because, according to its own evidence, it had, after all, a cash flow problem.

5) The respondent makes much of the absence of contemporaneous notes on the part of the applicant about the meeting of 10 December 2013. The same, however, also applies to the respondent. The only note that purportedly supports the version of Mr Sandhu is a Post-it note, which he says in the written statement was contemporaneous, and which read:

No output to carry forward the discussion.

This note is not dated; it does not contain any reference to an agenda item; it does not make mention of a rejection or a dispute; it most certainly does not contain any detail that reflects paragraph 53 of the witness statement of Mr Sandhu; and Mr Sandhu is not available to answer questions about the meeting in general or the note in particular. The absence of Mr Sandhu to be cross-examined is even more notable since the Tribunal observed in its reasons of 3 June 2014 at [39] in regard to the Post-it note:

These words cannot reasonably be taken to construe only one outcome, namely[,] a payment rejection. Even if the words are accepted to indicate a disagreement, or even if the words reflect Mr Sandhu's state of mind, the note is insufficient to corroborate the statement of Mr Sandhu that an unequivocal rejection of payment was made by him.

This hearing offered the ideal opportunity for Mr Sandhu to answer questions about the content of the meeting and the notes, if any, that he kept.

The fact is, neither of the parties kept detailed contemporaneous notes of the meeting of 10 December 2013. The Tribunal must therefore be guided by the evidence and by the conduct of the parties.

6) At no stage after the 10 December 2013 meeting did the respondent or Mr Sandhu refer to the 'fact' that the payment had purportedly been rejected or refused on 10 December 2013, or disputed. Mr Sandhu was not available for cross-examination to explain:

• why he did not reply to the email of 11 December 2013;

• why, at the meeting of 18 December 2013, he did not make mention that the invoice had already been rejected or disputed on 10 December 2013.

Even Mr Swanepoel, in his statutory declaration, does not make mention that the variation claim had been rejected or disputed. He only says that the applicant was told that it was the respondent's belief that the applicant was not entitled to all the amounts claimed. That does not come close to rejection or a reminder that a claim had already been rejected.

The statutory declaration dated 7 February 2014 of Mr Clements, Business Unit Manager Substations for the respondent, in regard to the meeting of 18 December 2013 offers no indication that the variation claim had been rejected or disputed previously. On the contrary, he said:

We want to go through the variation claims with you. We could agree to parts of the amounts claimed but will definitely not agree to the range of amounts that Westforce is claiming.

This evidence is consistent with that of Mr Murray and Mr Smith, namely, that the meeting of 18 December 2013 discussed claims in general and afforded the opportunity to the respondent to further assess the claims, including the variation claim.

The Tribunal finds that Mr Sandhu did not reject a payment on 10 December 2013 and he had not placed it in dispute. Mr Sandhu's evidence about the purported rejection of the invoice on 10 December 2013 is not credible and is rejected.

7) If the invoice had been rejected or placed in dispute, it must be ascertainable, for an objective person, that the requirements of the CC Act for a payment dispute to be declared had been met. Although the Tribunal has found previously that a payment dispute may be declared orally, that does not mean that any disagreement or dispute can, in retrospect, be referred to as a payment dispute for the purposes of the construction contractor. If such a broad interpretation was given to any form of disagreement, it would mean that a contractor could declare any meeting, where payment issues were discussed in retrospect, as the time where a dispute purportedly arose, and thereby contend that an application for adjudication should be dismissed because it was brought out of time.

Such an arbitrary outcome is entirely inconsistent with the aims and objectives of the CC Act. As was explained eloquently by Mr Murray, commercial negotiations of this type are robust, often drawn out, emotional and heated, and often additional material evidence is requested.

A dispute for the purposes of the CC Act is not something that just exists in the mind of one party. It must be clear and unequivocal so as to put the other party on notice that a threshold under the Act had been made.

If any disagreement or dispute is interpreted as a rejection or dispute for purposes of the CC Act, parties would not know where they stood with one another, since a difference of opinion may, in retrospect, be categorised as a 'payment dispute'. This is, in fact, what happened in this case. The applicant had no idea that 10 December 2013 may be regarded by the respondent as the date of the purported payment dispute. As a result, the applicant continued negotiations in good faith, and it was only when it received the submissions of the respondent to the adjudicator that the applicant realised what meaning the respondent gave in retrospect to the meeting of 10 December 2013.

If Mr Sandhu had intended to reject the claim, or place all or part of it in dispute, he could have:

a) made a clear statement during the meeting of 10 December 2013 - which he did not;

b) followed it up in writing, as was suggested in Blackadder at [16] - which he did not;

c) made reference to it in subsequent meetings - which he did not; or

d) given evidence in this proceeding to explain his understanding of events - which he did not.

The Tribunal observed in its reasons of 3 June 2014, in regard to the question whether additional material should be allowed, how risky it is for a person to be blindsided by another if a dispute is purported to be declared in retrospect. This case highlights the risk.

The Tribunal accepts the assessment that the variation claim was not resolved on 10 December 2013, but there is insufficient evidence to conclude that the invoice was rejected or disputed. The meeting was, in essence, part of ongoing commercial discussions to reach agreement on the payment of an invoice.

8) The payment dispute arose on 2 January 2014, which is 30 days after receipt of the invoice of 2 December 2013. The dispute arose because the variation claim had not been paid in full. The application for adjudication which has to be lodged 28 days after the date of the payment dispute was therefore lodged in time on 24 January 2014.

Orders

41 The Tribunal makes the following orders:

1. The application for review of the decision of the adjudicator, Mr Riley, in matter 5-14-01 dated 14 February 2014 succeeds.

2. The date of the payment dispute is 2 January 2014.

3. The finding of the adjudicator, Mr Riley, that the application was lodged out of time is revoked and the dismissal of the application is set aside.

4. The application is remitted to the adjudicator, Mr Riley, to determine on its merits.

I certify that this and the preceding [41] paragraphs comprise the reasons

for decision of the State Administrative Tribunal.

___________________________________

DR B DE VILLIERS, MEMBER