Agusta Industries v Niclad Constructions [2010] NSWSC 925

New South Wales Supreme Court

CITATION : Agusta Industries v Niclad Constructions [2010] NSWSC 925

HEARING DATE(S) : 30 July 2010

JUDGMENT DATE : 30 August 2010

JUDGMENT OF : Gzell J

DECISION : Summons dismissed. Plaintiff ordered to pay defendant's costs.

CATCHWORDS : Building and Construction - Building and Construction Industry Security of Payment Act 1999 - whether adjudicator's determination void for alleged failure of receipt of adjudication application - whether presumption of receipt of postal article - whether a denial of natural justice

Building and Construction Industry Security of Payment Act 1999 LEGISLATION CITED : Evidence Act 1995 Acts Interpretation Act 1901 (Cth)

TQM v Dasein [2004] NSWSC 1216 Falgat Constructions Pty Limited v Equity Australia Corporation Pty Limited [2006] NSWCA 259 CASES CITED : Brodyn Pty Ltd v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421 Timwin Construction v Façade Innovations [2005] NSWSC 548 Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd & Anor [2005] NSWSC 1129

PARTIES : Agusta Industries Pty Limited (Plaintiff) Niclad Constructions Pty Limited (Defendant)

FILE NUMBER(S) : SC 2010/57655

COUNSEL : J Young (Plaintiff)

SOLICITORS : Colin Biggers & Paisley (Plaintiff) Massey Bailey Solicitors & Consultants (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

MONDAY 30 AUGUST 2010

2010/57655 AGUSTA INDUSTRIES PTY LIMITED v NICLAD CONSTRUCTIONS PTY LIMITED JUDGMENT 1 The plaintiff, Agusta Industries Pty Limited, claims that whether or not it received an adjudication application under the Building and Construction Industry Security of Payment Act 1999 (Security Act), it was denied natural justice and the determination made by the adjudicator was void. 2 The defendant, Niclad Constructions Pty Limited, carried out "construction work" for Agusta as that term is defined in s 5 of the Security Act. Under the building contract between the parties, Niclad was entitled to progress payments. 3 On 15 December 2008, Agusta withheld payment on the basis that it had offsetting charges. It itemised the amounts claimed by Niclad and the offsetting charges to that date. 4 On 20 December 2008, Niclad served a payment claim on Agusta in terms of s 13 of the Security Act. 5 On 16 January 2009, Agusta not having served a payment schedule under s 14 of the Security Act, Niclad served a notice under s 17(2)(a) notifying Agusta that it intended to apply for adjudication of its payment claim. 6 That drew a response from Agusta on the same day that referred back to its reconciliation of 15 December 2008. The adjudicator later found this to be a payment schedule. 7 Section 17(5) of the Security Act provides that a copy of an adjudication application must be served on the respondent concerned. On 4 February 2009, Niclad tried to send the adjudication application to Agusta by facsimile but there was a malfunction and portion only of the adjudication application was received by Agusta. 8 Angelo Ferella, the project manager of Agusta, said that approximately three pages were received. I do not accept that evidence. The facsimile transmission report recorded that the function was not completed but it also recorded that 11 pages were sent. 9 The first page of the facsimile clearly identified the document as an adjudication application under the Security Act. The second page identified the total amount of the payment claim. The third page identified the date and the claimant. There followed submissions in support of the claim. 10 Luigina Dal Cin was the accounts manager of Niclad. She said that after the facsimile malfunction and on the same day she placed a copy of the adjudication application in an express post envelope and addressed it to Agusta's registered office and principal place of business. 11 Mrs Dal Cin said she then sent the adjudication application of some 45 pages by facsimile to LEADR, an authorised nominating authority under the Security Act, together with the facsimile transmission report upon which was noted: "Fax not completed stopped at Augusta on other end (no answer) Mailed instead. Express Post 4/2/09." 12 That afternoon Mrs Dal Cin said she went to the post office and placed the envelope in an express post mailbox retaining the receipt number which she placed on the third page of the copy of the adjudication application that she kept together with the following: " Note – Fax only sent 10 pages to Augusta then stopped. Tried to send a number of timesno answer to fax machine on Augusta end. Mailed copy Express Post" 13 I accept the evidence of Mrs Dal Cin in relation to the posting of a copy of the adjudication application to Agusta. 14 Mr Ferella received a telephone call from Paridhi Jain of LEADR on 4 February 2009. She told him that Niclad had attempted to send Agusta an adjudication application. Mr Feralla said he had received a few pages by facsimile but had received nothing more due to some difficulties experienced with Agusta's facsimile machine. He asked Ms Jain to ask Niclad to courier the document or put it in the mail and Ms Jain agreed. 15 Ms Jain then telephoned Mrs Dal Cin on the same day and told her that she had spoken with Mr Ferella and he said he did not receive the adjudication application. Mrs Dal Cin said the facsimile machine said 11 pages were sent but she also said she had posted the adjudication application by express post and she would send it to Mr Ferella the next day by registered post. 16 On 5 February 2009, Mrs Dal Cin said she went to Burwood post office and addressed a registered post envelope containing a copy of the adjudication application to the plaintiff at its registered office and principal place of business. She kept a copy of the registered post receipt. I accept her evidence and infer that she paid the postal charge and placed the envelope in a post mailbox. 17 Mr Ferella claimed that he did not receive either envelope or any further documentation from Niclad in relation to the adjudication application or otherwise. 18 LEADR appointed Philip Martin who accepted appointment as adjudicator on 9 February 2009. LEADR sent a facsimile to both parties on 10 February 2009 announcing Mr Martin's appointment and also sending his acceptance and a letter addressed to both parties. 19 Mrs Dal Cin inserted the name of Niclad as claimant and dated the adjudicator's acceptance. She said she then sent by facsimile to Mr Ferella the adjudicator's acceptance, his letter and the LEADR letter. On the same day she sent to LEADR a copy of the adjudicator's acceptance together with the facsimile transmission report showing the three pages were sent to the facsimile number of Agusta. Mrs Dal Cin added a note to Ms Jain on the transmission report: " Attention Paridhi Jain