Eastland Truss & Timber Pty Limited v Matthew John Byrnes t/as Qualibuilt Constructions [2014] NSWSC 1461

Supreme Court New South Wales

Medium Neutral Citation: Eastland Truss & Timber Pty Limited v Matthew John Byrnes t/as Qualibuilt Constructions [2014] NSWSC 1461 Hearing dates: 22 October 2014 Decision date: 22 October 2014 Jurisdiction: Equity Division - Technology and Construction List Before: Bergin CJ in Eq Decision: The Summons is dismissed. Catchwords: BUILDING AND CONSTRUCTION - whether adjudicator complied with obligations under the Building and Construction Industry Security of Payment Act 1999 in making determination - whether jurisdictional error Legislation Cited: Building and Construction Industry Security of Payment Act 1999 Cases Cited: Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd [2005] NSWCA 228; 63 NSWLR 385 Pacific General Securities Ltd v Soliman & Sons Pty Ltd [2006] NSWSC 13; 196 FLR 388 Category: Principal judgment Parties: Eastland Truss & Timber Pty Ltd (Plaintiff) Matthew John Byrnes t/as Qualibuilt Constructions (1st Defendant) Christopher Larcos (2nd Defendant) Representation: Counsel: MWE Maconachie (Plaintiff) TO Bland (1st Defendant) Solicitors: Donovan Oates Hannaford Lawyers (Plaintiff) Everingham Solomons (1st Defendant) File Number(s): 2014/232811 Publication restriction: Nil

Judgment - EX TEMPORE 1The plaintiff, Eastland Truss & Timber Pty Ltd, by Summons filed on 7 August 2014, seeks a declaration that the Determination made by the second defendant, Christopher Larcos, dated 18 June 2014, pursuant to the Building and Construction Industry Security of Payment Act 1999 (the Act) was attended with jurisdictional error and is void. The second defendant has filed a submitting appearance. 2An alternative order is sought in the nature of certiorari that the decision be quashed. The plaintiff also seeks an order restraining the first defendant, Matthew John Byrnes trading as Qualibuilt Constructions (to whom I will refer as the defendant) from acting or relying upon the Determination. The defendant has now obtained a judgment in the Local Court pursuant to an adjudication certificate. The plaintiff seeks to restrain the defendant from proceeding with the enforcement of that judgment. 3The Technology and Construction List Statement filed with the Summons refers to the background of the relationship between the parties. The plaintiff and the defendant entered into a contract pursuant to which the defendant was to carry out certain carpentry works for the plaintiff. It is a Standard Contract Agreement at a fixed price of $70,000 for a project for student accommodation buildings in Tamworth. The commencement date was 11 July 2013, payment terms were 30 days with a defects liability period of 52 weeks. 4The contract scope of works was in the following terms: ● Labour - all works associated with contract - Student Accommodation & URGH Renovation ● Supply of all fixings as required to complete installation works ● Installation of Timber Frames and Ancillaries ● Installation of Timber Trusses & Ancillaries ● Installation of Timber Floor Systems (Engineered) ● Installation of Decking & Ancillaries ● Compliance of WH&S as required by Head Contractor and Eastland Truss and Timber Pty Ltd ● Works to be notified for inspection as per ITP - issued by Eastland Truss and Timber and as required by Head Contractor. ● Make Good all affected areas at Practical Completion ● Notify Eastland Truss and Timber - Chris Meyers prior to completion of each section - as per ITP for Pre-Defect Inspection. 5There was no issue before the adjudicator that the contract price had been adjusted as a result of certain variations involving tie-downs and other works. The adjudicator was therefore presented with an agreed price of contract as varied for the works. 6Disputation arose during the Project, and the parties entered into some negotiations that are unnecessary to detail. One aspect of the relationship was that the plaintiff's site supervisor was BDM Constructions. On 8 August 2013, BDM Constructions signed the Final Inspection of Works certificate which included the following: All persons named above agree that all work has been completed satisfactorily as per the original contract with Eastland Truss/001 and as per Australian Standards and current building codes. All moneys owing are now approved for payment. 7The persons named were William Webb from Qualibuilt, Matthew Byrnes from Qualibuilt, the third person Nathan from Qualibuilt, and Glen Crow from BDM Constructions. It was Mr Crow who signed as the site supervisor on behalf of the plaintiff. 8Although there had been previous payment claims and payment schedules served under the Act, the relevant Payment Claim was dated 24 April 2014 and was served on the plaintiff on 5 May 2014 for the amount of $56,919.94. The Schedule to the Payment Claim was in the following terms: Contract Sum $70,000.00