Adjudication Application: 1161637

ADJUDICATOR’s DECISION Made under s26 of the Building and Construction Industry Payments Act 2004 QLD (“the Act”)

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Adjudication Application: 1161637_187 ANA : Able Adjudication Pty Ltd (N1161637)

Adjudicator : Andrew Bruce Wallace (J47895)

Application Details

Claimant

Name : Civelec Pty Ltd

ABN : 87 114 143 261

Respondent

Name : Traffic Systems Technology Pty Ltd

ABN : 55 689 700 612

Project

Type : Commercial – Installation of traffic signals

Location : Napper Road and Chilchester Drive, Arundel Gold Coast

Payment Claim

Date Served : 3 August 2011

Amount : $68,810.16 (including GST)

s18 Payment Schedule

Date : 17 August 2011

Amount : NIL

s21 Notice Date : N/A

s21 Payment Schedule

Date : N/A

Amount : N/A

Application Detail

Application Date : 23 August 2011, but not served on the Respondent until 25 August 2011 and not filed with the ANA until 31 August 2011

Acceptance Date : 29 August 2011

Response Date : 1 September 2011

Adjudicator’s Decision Adjudicated Amount : $6,561.50 (including GST)

Due Date for Payment : 17 August 2011

Rate of Interest : The rate prescribed under s.48(1) of the Supreme Court Act 1995 for debts under a judgment or order

Claimant Fee Proportion (%) : 50%

Respondent Fee Proportion (%) : 50%

Date : 15 September 2011

Claimant: Civelec Pty Ltd

Respondent: Traffic Systems Technology Pty Ltd

Authorised Nominating Authority: Able Adjudication

Adjudication Application: 1161637_187 2 | P a g e Andrew Wallace J47895

Decision This is a decision made under the Building and Construction Industry Payments Act 2004

(Qld) (“the Act”).

In respect of the Claimant’s Payment Claim, I decide that:

The amount of the progress payment to be made by the Respondent to the Claimant is

the adjudicated amount referred to on page 1 herein;

The date upon which the payment became due is the Due Date for Payment referred to

on page 1 herein;

The rate of interest on the adjudicated amount is the rate referred to on page 1 herein;

and

The parties are liable to pay the adjudication fees in accordance with the details

referred to on page 1 herein.

______________________________________________________________

Introduction and Background

1. This is a matter involving an adjudication application arising from a partly written and

partly oral construction contract (“the Contract”) for the supply and installation of

electrical reticulation, trenching and ancillary civil works (“the Works”) associated with

the installation of traffic signals (“the Project”) on the corner of Napper Road and

Chichester Drive, Arundel on the Gold Coast.

2. In so far as the Contract was written, the terms were contained in a tender document

prepared by the claimant subcontractor (“the Claimant”) and provided to the respondent

head contractor (“the Respondent”) on or about 24 November 2010. The principal under

the head contract was the Gold Coast City Council (“GCCC”).

3. The contract provided for a lump sum in the amount of $256,948.00 excluding GST.

4. The parties have at least once before been involved in the adjudication process whereby

the Claimant sought the recovery of monies allegedly owing under the Contract. On 27

July 2011, Adjudicator Ms MacKenzie decided that the Claimant was entitled to the sum

of $73,469.79 including GST from the claimed amount of $158,003.92 including GST in

Decision No. 1161637_182. For the sake of clarity, I shall refer to Ms MacKenzie’s

adjudication decision as “the previous adjudication decision”.

5. On the face of the material, it is unclear what date the parties entered into the Contract,

although I note that in paragraph 2 of the previous adjudication decision the contract was





said to have been entered into on or before 3 January 2011. Nothing turns on that

however.

6. The Claimant in the Payment Claim the subject of this Application sought payment in the

sum of $68,810.16 including GST. The Respondent valued the claim at zero.

Procedural history and jurisdiction

7. I accept the following information details the procedural history of this application and

find that there is jurisdiction for making a decision pursuant to the Act.

8. The details of the timing of the issue of the relevant documents and work are:

8.1. A valid Payment Claim dated 2 August 2011 was served on the Respondent on or

about 3 August 2011 by email. The precise dates of actual service of relevant

documentation in this Application is relatively unclear. I shall return to this issue

below. The Payment Claim was in the sum of $68,810.16 (including GST) (“the

claimed amount”).

8.2. The Respondent served a Payment Schedule on the Claimant in accordance with

the requirements of s.18(4)(b)(ii) of the Act (“the Payment Schedule”) on 17 August

2011. It provided a scheduled amount of zero.

8.3. The Claimant made an application for adjudication (“the Application”) on 31 August

2011 to a Registered Authorised Nominating Authority, Able Adjudication. This is

within the required 10 business days after the Claimant received the Payment

Schedule.1

8.4. I am satisfied that the Claimant also served a copy of the Application on the

Respondent on 25 August 2011 as identified in paragraph 1 of the Adjudication

Response. Although it is uncommon for the Respondent to have been served with

the Adjudication Response before it was filed with the ANA, nothing turns on this

issue. There is some background regarding the service of documents which I shall

return to in my reasons below.

9. In reaching my decision I have considered:

9.1. The requirements of the Act;

9.2. The contract between the parties;

9.3. The Payment Claim and the Application, together with properly made submissions

and documents provided therein;

1 Section 21(3)(c)(i) of the Act





9.4. The Payment Schedule and the Adjudication Response together with properly

made submissions and documents provided therein.

Reasons for the Decision Preliminary Matters – Service of Documents

10. The Payment Claim was dated 1 August 2011. On the second page of the Application,

the Claimant was invited by way of the ANA’s pro forma document to state the date on

which the Payment Claim was served.

11. Although the Claimant acknowledges that the Payment Claim was dated 1 August 2011,

in respect to the date on which it was served on the Respondent, the Claimant stated

“Unknown” in the email section for its date of service. On page 1 of its Application

submissions, the Claimant submitted that the Payment Claim was served “on or about 1

August 2011”. In the circumstances there is some degree of uncertainty as to when the

Claimant actually served the Payment Claim on the Respondent.

12. I note that in Attachment “B” of the Application there is an email from Bryan Hastings to

Steve Diessel who is a Director of the Respondent. The email purports to attach the

Payment Claim and is date stamped “Tuesday, 2 August 2011 1:01 PM”.

13. Ordinarily I would have accepted a submission from the Claimant had it been made, that

the email, in the absence of contradictory evidence, was sufficient evidence to establish

that the Payment Claim was served on 2 August 2011. It is clear that email

communications have been used extensively by the parties and there is no express term

of the contract which excludes that form of communication for the service of documents.

As I say however, that submission regarding the date of its service was not put by the

Claimant, rather the Claimant for reasons known only to itself could not state when the

Payment Claim had been served.

14. The Respondent alleges that it was served with the Payment Claim on 3 August 2011.2

However, there is some background that must first be explored before I can address the

issue of when the Payment Claim was actually served.

15. In correspondence dated 9 August 2011, the Claimant received a document written by

Rudkin Hitchcock Lawyers entitled:

“TRAFFIC SYSTEMS TECHNOLOGY PTY LTD & CIVELEC CONTRACT NO.

LG314/254/10/061 – PAYMENT SCHEDULE”

2 See p.1 of the Payment Schedule dated 16 August 2011 but served on 17 August 2011





16. Rudkin Hitchcock commences the correspondence by writing:

“We act for Traffic Systems Technologist (sic) Pty Ltd in respect of the contract for the

supply and installation of traffic control signals at the intersection of Napper Road and

Chichester Drive and are instructed to respond as follows to your Monthly Progress

Payment Claim dated 1 August 2011 in the sum of $68,810.16, made as a payment

claim, by way of a Payment Schedule issued by the Principal pursuant to Section 18 of

the Building & Construction Industry Payments Act:‖

17. Rudkin Hitchcock then proceed to state their “instructions” in the “Payment Schedule”.

18. The Respondent then by facsimile on 17 August 2011 served the Claimant with a further

payment schedule dated 16 August 2011 which gave reasons for a zero scheduled

amount. I will return to those reasons below. For reasons which will become apparent, I

shall refer to this document dated 16 August 2011 but served on 17 August 2011 as “the

Payment Schedule”.

19. The Payment Schedule stated that the Payment Claim was served on 3 August 2011.

No further explanation was afforded by the Respondent. The date of service of the

Payment Claim was not directly challenged by the Claimant in the Application, or if it was

challenged, it was not pressed in any forceful manner. As I previously suggested, at

best the Claimant in the Application stated that the Payment Claim was served “on or

about 1 August 2011”. In light of the uncertainty surrounding the date of its service and

in the absence of any clear evidence, I am prepared to give the Respondent the benefit

of the doubt. In the premises, I am satisfied that the Payment Claim was served on 3

August 2011.

20. In what can best be described as a bizarre set of circumstances, by letter dated 24

August 2011 addressed to the Claimant, Rudkin Hitchcock stated:

―We prepared and filed a letter in response to your payment claim dated 9 August

2011. Our client was also instructing a preparation of material from a Quantity

Surveyor to deal with your Payment Claim.

Due to miscommunication between ourselves and our client, Traffic Systems

Technology Pty Ltd, we confirm that we did not have authority to serve a payment

schedule on our client’s behalf and accordingly the letter purporting to be a payment

schedule dated 9 August 2011 is hereby withdrawn.‖





21. At first glance it is unclear how Rudkin & Hitchcock could have been said to be acting on

their client’s instructions, only to later reveal that the contents of its purported payment

schedule were not in fact and in truth made on their client’s instructions at all. Assuming

that Rudkin Hitchcock did not proceed on a frolic of their own, one would have thought

that its letter dated 9 August 2011 would have had the imprimatur of their client.

22. The Claimant in the Application rejects the validity of the Payment Schedule. On page 1

of the Application (the page after the cover page), the Claimant stated that it “found a

second Payment Summary (sic) allegedly dated 16 August 2011 and allegedly faxed to it

by the respondent on 17 August 2011. Claimant cannot tell if this second Payment

Summary is as well as, or in place of the first Payment Summary.‖

23. The Claimant did not elaborate on the circumstances as to how it came to “find” the

Payment Schedule on 23 August 2011. The Applicant does not assert, rightly in my

view, that service ought to be taken as the date it “found” the Payment Schedule.

Clearly on the face of the Claimant’s own evidence, the Claimant must have been

provided with some documentary evidence that the Payment Schedule was in fact

served by fax on 17 August 2011. In the premises, I am prepared to accept that the

Payment Schedule was in fact served on 17 August 2011 by facsimile.

24. I accept the Claimant’s submissions that it would have been confused as to which

document it needed to respond to in the Application. This confusion would have

occurred because the Payment Schedule did not refer to the earlier document dated 9

August 2011. But in my view, that only lends weight to the Respondent’s submission

that the confusion regarding the serving of two payment schedules was due to a

miscommunication between the Respondent and its solicitors and the Respondent and

its Quantity Surveyor. Due to that miscommunication, it appears that the Respondent

had two independent parties preparing its payment schedule. It would appear that each

of those representatives (the solicitors and the Quantity Surveyor) may have been

unaware of the other’s efforts although there is no evidence to support that.

25. I do not accept the Claimant’s submission that these rather unusual circumstances led to

it suffering some form of disadvantage. The Claimant asserts that it was disadvantaged

because in having to deal with the deadlines of the first payment schedule, it was also

attempting to deal with the reasons stated in the second Payment Schedule.

26. If I accepted the Claimant’s submissions that the purported payment schedule dated 9

August 2011 was the only valid payment schedule, then I would have to find that the

Application itself was also invalid because as the purported payment schedule was





served on 9 August 2011, the Claimant would have to have filed the Application on the

ANA in accordance with s.21(3)(c)(i) of the Act on or before 23 August 2011.

27. The Claimant did attempt to file an Adjudication Application on the ANA on 23 August

2011 as stated in the ANA’s Adjudication and Referral Notice dated 29 August 2011.

However, I accept in these particular circumstances that the Application was itself

incomplete because one of the email attachments said to form part of the Application

appears to have been corrupted and was not able to be opened. The corrupted file was

said to be Part 1 of 3 parts to the Application. Therefore it is possible, if not likely that

Part 1 contained a substantial part of the Application. In the premises, I am not prepared

to find that the purported application filed on the ANA on 23 August 2011 was a valid

application under the Act.

28. As stated above, the day after the Claimant filed the purported application on 23 August

2011, Rudkin & Hitchcock faxed its’ withdrawal of the purported payment schedule dated

9 August 2011.

29. The end result of this cacophony of errors was that whilst having received the Payment

Schedule on 17 August 2011 and having been advised on 24 August 2011 that the

purported payment schedule was withdrawn, the Claimant pursuant to s.21(3)(c)(i) of the

Act, had until 31 August 2011 to file its Adjudication Application. There was in my view,

no material disadvantage to the Claimant because as demonstrated in the Application, it

dealt with the issues contained in both the purported payment schedule and those

contained in the Payment Schedule, many of which appear to have overlapped one

another. Further, although the parties appear to have done their level best to complicate

the issues, the matter is a relatively straight forward dispute involving only a modest sum

of money and only 7 variations plus retentions. In the broader scheme of things, it is not,

or at least it ought not have been a complex matter.

30. I accept that the Application was filed with the ANA in hard copy format on the last

available day, being 31 August 20113 and I also accept that the Application in hard copy

format was served on the Respondent on or about 25 August 20114. I also accept that

the Adjudication Response was provided to the ANA on 1 September 20115 in

accordance with s.24(1)(a) of the Act. I am also satisfied that the Adjudication

3 See the letter of the ANA’s Queensland Agent to the ANA dated 2 September 2011

4 See paragraph 1 of the Adjudication Response

5 See the letter of the ANA’s Queensland Agent to the ANA dated 2 September 2011





Response was served on the Claimant pursuant to s.24(5) of the Act on 1 September

2011.6

31. In all respects, based on my findings outlined herein, I am satisfied that all of the

requisite provisions as to timing under the Act have been complied with and that the

Payment Claim, the Payment Schedule, the Application and the Adjudication Response

have been served in time and are otherwise valid.

Issue Estoppel & Abuse of Process

32. The Respondent in paragraph 15 of the Adjudication Response stated:

―For the most part the claimant’s claims are plainly and simply re-agitation of claims

already considered and decided on their merits in the Adjudication 1161637_182 by

adjudicator Aleisha Jane MacKenzie and accordingly should be rejected in their

entirety as being subject to legal principles of issue estoppel and/or abuse of process.‖

33. The Respondent further argues that the Claimant is prevented from re-agitating claims

that have already been decided and prevented from “fabricating” new claims which have

been previously decided but disguised as new ones.

34. The Respondent relies upon the following authorities to support its submissions:

34.1. Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69;

34.2. AE & E Australia Pty Ltd v Stowe Australia Pty Ltd [2010] QSC 135;

34.3. Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd [2009] NSWSC 416;

34.4. Urban Traders Pty Ltd v Paul Michael [2009] NSWSC 1072;

34.5. Watpac Constructions (NSW) Pty Ltd v Austin Corp Pty Ltd [2010] NSWSC 168;

34.6. Spankie & Ors v James Trowse Constructions Pty Ltd [2010] QCA 355;

34.7. John Holland Pty Ltd v Schneider Electrical Building Australia Pty Ltd [2010] QSC

159.

35. I accept in principle the Respondent’s submission that the re-submission or re-agitation

of claims which have already been considered and decided in a valid prior adjudication

is impermissible. In Dualcorp at paragraphs [69] to [72], Macfarlane JA with whom

Handley AJA agreed, said:

“69 As pointed out in Kuligowski, for the principle of issue estoppel to apply, the same issue must

6 See the Statutory Declaration of Stephen Diessel declared 3 September 2011





have been earlier determined as is later sought to be reagitated (at [40]). Thus, if a progress

claim were rejected by an adjudicator because it was premature by reason of the date stipulated

for payment by the contract, a later claim made on a timely basis would not be precluded.

However (to take as an example the issue which was before McDougall J in John Goss Projects)

if a progress claim were rejected because it was not made in accordance with express

requirements of the contract, that determination would be binding on a subsequent adjudicator

before whom the same issue arose. Similarly, it would be an abuse of process for the claimant to

rely upon a later progress claim in response to which no Payment Schedule was served to obtain

judgment on a basis conflicting with issues resolved in the earlier determination.

70 I thus disagree with the view ultimately arrived at by McDougall J in John Goss Projects that

s 22(4) defines the extent to which an adjudicator is bound by an earlier adjudication. The view

that the claimant once disappointed by an adjudicator can seek a different determination from

another, or indeed from a succession of others, until a favourable decision is reached would in

my view conflict with the policy of the Act to render adjudicators’ determinations final on issues

which they resolved, subject only to provisions of the Act conferring limited rights of correction

of determinations.

71 Dualcorp asserts that this approach could produce unfair outcomes where a claim has not

been the subject of adjudication on the merits but has been rejected for want of evidence. It was

submitted that because of the unfairness that would flow from precluding a claimant bolstering its

evidence on another adjudication, it cannot have been intended that adjudications would be

conclusive.

72 I do not agree. It is not at all unusual that persons seeking remedies in courts or other forums

have a once only opportunity to bring forward evidence and submissions in support of their

claim. This is in fact the usual situation and is consistent with what the High Court in D’Orta

referred to as the “central and pervading tenet of the judicial system … that controversies, once

resolved, are not to be reopened except in a few, narrowly defined, circumstances” (at [34]).

36. The Qld Court of Appeal in Spankie per Fraser JA at [25] – [27] with whom Holmes and

Chesterman JJA agreed, adopted the approach of the New South Wales Court of

Appeal in Dualcorp.

37. It is important to note that the decision in Dualcorp also denies a claimant’s entitlement

to serve a subsequent payment claim when a previous adjudicator has dismissed or

rejected that claim for want of evidence. Macfarlane JA was satisfied that there was a

“Once only opportunity” for the claimant to put its evidence forward and if it tried to do so

again the principle of issue estoppel would prevent it from doing so.

38. As I have said, as a matter of principle, I accept these submissions. However, I am not

able to apply these principles in a vacuum, but must assess their application to each of

the variations claimed on a case by case, item by item basis.

Invalid Payment Claim

39. The Respondent in the Adjudication Response submits that the Payment Claim is also

invalid because the claim in respect to Variation # 19 does not comply with s.17(2)(a) of





the Act because it allegedly fails to identify the dates when the demobilisation and

remobilsation occurred.

40. I shall address the merits of the complaint against Variation # 19 below. However, I am

able to deal with the substance of the submission at this point. If I were to accept that

Variation #19 was insufficiently particularised, then I would reject that discrete aspect of

the claim only. However that would not mean that the balance of the claim did not

properly identify the construction work performed. In principle therefore, I reject the

Respondent’s submission.

Contract ―Back to Back‖ with Head Contract

41. The Respondent asserts in the Adjudication Response that the Contract was subject to

the same terms and conditions as the head contract entered into by the Respondent with

the GCCC. This submission was supported by a very brief Statutory Declaration of

Steve Diessel dated 1 September 2011.

42. The Respondent also submits in the Adjudication Response that Ms MacKenzie

“discounted the discussions and agreement between the parties as forming the terms

and conditions of contract between the parties.” The Respondent asserts that I am not

bound by the findings of Ms MacKenzie regarding contractual matters, other than in

relation to findings of value pursuant to s.27 of the Act.

43. There are a number of difficulties I have with the Respondent’s submissions.

44. Firstly, it appears that the Respondent did not raise these issues in the Payment

Schedule and is therefore, precluded from doing so in the Adjudication Response

pursuant to s.24(4) of the Act.

45. Secondly, the parties have not addressed this issue in any detail whatsoever in the

material before me, which given my first concern is hardly surprising from the Claimant’s

point of view. Having read the decision of Ms Mackenzie, it appears that she received

detailed submissions in relation to the relevant terms of the contract, both written and

oral, express and implied. She devoted 5 full pages in her decision to this issue. Her

reasoning appears well considered and logical.

46. Thirdly, the Statutory Declaration of Mr Diessel is so lacking in content that it is all but

meaningless. Mr Diessel does not attest to the basis of his understanding that the

Contract was to be “back to back” other than to say that all previous subcontracts were

treated similarly. He does not provide any evidence of what those subcontracts were





nor how many previous subcontracts there were. It is impossible to establish the

purported term in the absence of this evidence in my view.

47. I do however accept that pursuant to s.27 of the Act, I am bound by any valuations

ascribed by Ms MacKenzie, unless I am satisfied that the value of the work has changed

since the previous decision.

48. Given the concerns I have raised, notwithstanding the Statutory Declaration of Mr

Diessel, I am unwilling to accept the Respondent’s submission that the terms of the head

contract were imputed into the Contract.

Item 1: 101/9001.01 – Preparation of existing substrate surface

49. The Claimant seeks payment for this item in the sum of $3,355.44 including GST. It is

said to be constituted by the preparation of 254.2 m2 of road surface area calculated at

the tendered rate of $12.00 per m2.

50. The Respondent in the Payment Schedule rejects the claim and values it at nil. It

argues that the work was not performed and the Claimant has provided no credible

evidence to support the claim. In the alternative, the Respondent argues that this aspect

of the claim was determined in the previous adjudication decision and valued at nil and

that pursuant to s.27 of the Act, I must also value the work at nil.

51. The Claimant in the Application argues that Ms Mackenzie at paragraph 82 of the

previous Adjudication Decision found that the item was a “provisional sum subject to

remeasure”.

52. It appears from the Respondent’s previous submissions to Ms MacKenzie that it

accepted that “it is a provisional quantity which pursuant to the terms of the contract is

subject to re measure once the final quantity is known.”

53. I am satisfied that Ms MacKenzie did not value the work at nil. A close reading of her

reasons at [82] to [90] reveals that she formed the view that because the Claimant had

supplied insufficient evidence to quantify the square metreage of preparation, the

Claimant was not entitled to claim for the item. That is distinct from her valuing the work

at a nil dollar value.

54. However, essentially Ms MacKenzie was unable to value the claim for want of evidence.

Based on the reasons stated by Macfarlane JA in Dualcorp at [70]-[72] (extracted above

in paragraph 35), I am of the view that the Claimant cannot overcome the lack of

evidence in the first adjudication application by providing further evidence before me. I





am satisfied that the Respondent has made out its argument in respect of Issue

Estoppel and is not required to pay any part of this aspect of the claim.

Item 2 – Variation # 14 – weekend work

55. The Claimant seeks payment for this item in the sum of $5,708.00 excluding GST being

for the provision of its services during weekends. It argued that the tender excluded the

provision of weekend work “by qualification” referring to its comments in the email dated

24 November 2010 which annexed the Claimant’s quotation to perform the works.

56. The Respondent in the Payment Schedule valued this item at nil. It argued that the

Claimant was not given any verbal or written direction to perform weekend work. It relied

upon an email dated 4 August 2011 from what appears to be a representative of the

Principal’s Superintendent wherein Nathan McMahon denied giving either the Claimant

or the Respondent any direction to “compress” the works. In the alternative, the

Respondent argues that the claim is excessive and cannot be substantiated. It argues

that during the six week construction period, the Claimant was not on site for eleven

days, which had they been, would have negated the requirement to perform the work on

weekends.

57. I accept that the rainfall records contained within Attachment “J” of the Application

evidences that there was significant rainfall during the relevant construction period. I

also accept that the Claimant was advised on numerous occasions that the works were

to be completed by the end of the school holidays. Whilst this was not a direction to

compress the works, clearly given the state of the weather in particular, the works did

need to be compressed.

58. I do not accept the Respondent’s submissions that just because a project manager may

be on wages, although there is no evidence to support that, that there is no additional

cost if that person works over weekends. There is no evidence to otherwise support the

estimates provided by the Respondent at Attachment 10 to the Adjudication Response.

59. There appears to be no challenge by the Respondent to the rate of 50% claimed on top

of the week-day rate, although I concede the Respondent principally submits it shouldn’t

have to pay any additional sum. On balance, in my view the Claimant is entitled to the

week-day rate plus 50% for the works performed on weekends. In the premises, I am

satisfied that the Claimant is entitled to its alternative claim in the sum of $2,560.00

excluding GST as calculated in Attachment L to the Application.





Item 3 – Variation # 15 – Demobilisation – Survey/Set-out

60. The Claimant seeks payment for this item in the sum of $3,405.00 excluding GST being

for the demobilisation of its workforce on 10 February 2011 arising out of an alleged

survey error on the part of the Respondent.

61. The Respondent in the payment schedule denied that the Claimant was unable to

perform any other work on the site and says that other works were available to be

performed. In addition, the Respondent argues that the delay was caused by a simply

typographical error that a reasonably competent person should have been able to

discern and remedy.

62. The Respondent makes two alternative submissions. Firstly, it states that the traffic

control was on site on 10 February 2011 and I assume the Respondent means the

Claimant has been paid for this work within its contract amount. Secondly, the

Respondent argues that I am bound by s.27(2) of the Act because the Claimant has not

performed any further work on the project since the reference date in respect of its

payment claim the subject of the previous adjudication decision. I shall refer to this

submission and others like it as “the Respondent’s s.27(2) argument”.

63. I accept the Claimant’s submissions that it was not responsible for the set-out of the

works and that such was the responsibility of either the Respondent or the Principal. I

am not satisfied that the email of Nathan McMahon dated 4 August 2011 at Attachment

11 of the Adjudication Response constitutes sufficient evidence to support the

Respondent’s submission that a reasonably competent contractor should have been

able to identify the error and work around it. Equally, there is no evidence that there was

other work available to the Claimant to perform. I accept the Claimant’s submission

querying why it would have mobilised its workforce to attend the site, when it only

intended to go to another.

64. I accept that the Respondent may have paid the Claimant for traffic control on 10

February 2011 as part of the contract, but assumedly there would have been some work

performed by the Claimant in order for it identify the problematic set-out. In order to

identify those problems, traffic control would have been necessary in my view. This is

not a valid reason for withholding payment.

65. In respect to the Respondent’s s.27(2) argument I am of the view that none of the

authorities upon which it relied supports the contention that the Claimant is prevented

from claiming for further works which were not previously claimed in a prior adjudication

application. The Claimant’s entitlement to payment for this item appears not to have





been previously agitated. The Respondent’s submission may have some force if there

were a written contract which set out specific reference dates and the contract provided

for a “final claim” which had been previously adjudicated upon, but that does not appear

to be the case here. In any event it is unnecessary for me to form a final view on this

point.

66. In the absence of any contractual restriction on the number of payment claims which

may be issued, the statutory position prevails. That is, provided that the Payment Claim

was served from each reference date7, calculated in accordance with Schedule 2 of the

Act to be the last day of each month, up to a period of 12 months from when the work

was last carried out, the Payment Claim would be valid.8 It is not the case that the work

claimed in the Payment Claim shared the same reference date for the works claimed

under the previous adjudication decision. The payment claim the subject of the previous

adjudication decision was served on 9 June 2011. Therefore it is reasonable to assume

that its reference date was 31 May 2011. The Payment Claim was served on 3 August

2011. Assumedly, its reference date was 31 July 2011. Therefore, s.17(5) of the Act

which prohibits multiple payment claims in respect to the one reference date, has no

application, nor does s.27(2) of the Act. In the premises, I reject the Respondent’s

submissions.

67. For the reasons expressed and in the absence of any contradictory evidence regarding

the reasonableness of the quantum of the claim, I am satisfied that the Claimant is

entitled to the claimed amount in the sum of $3,405.00 excluding GST.

Item # 4 – Variation # 16 – Surfacing Traffic Control

68. The Claimant seeks payment for this item in the sum of $2,000.00 excluding GST for the

costs associated with traffic control during the surfacing of the works.

69. The Respondent values the item at nil arguing that the Claimant should have

incorporated the costs of traffic control in its contract sum and that any failure to do so

should not prejudice the Respondent. In the alternative the Respondent’s s.27(2)

argument is maintained.

70. In respect of the first of the Respondent’s submissions, I accept the Claimant’s

submission that the accompanying email dated 24 November 2010 which was provided

with the tender stated in part:

7 See s.12 of the Act and Schedule 2 for the definition of “Reference Date”

8 See s.17(4)(b) of the Act





“Can you add an extra $2000 for the traffic control for the surfacing”.

Therefore, I accept that the Claimant communicated to the Respondent that this was

additional work and cost to the tender price. It must be remembered that there was no

formal written contract with the usual “Entire Agreement Clauses” which ordinarily bind

the parties to the terms of the written contract and nothing else. In the absence of

evidence to the contrary, I accept that the Respondent at some point in time accepted

the terms of the tender and any other qualifications which were attached to it, such as

those contained in the Claimant’s email dated 24 November 2010.

71. In respect to the Respondent’s s.27(2) argument, in this case I am of the view that it has

merit. Having considered the comments of Ms MacKenzie where she carefully outlined

the submissions of the parties in respect to Variations 003, 009 and 011 it is clear that

the issue of traffic control was agitated before her. What is unclear is whether traffic

control in respect to surfacing was agitated before her.

72. Whether it was or was not, I am satisfied that in general the costs of traffic control was

argued and determined. Claimants ought not be given the opportunity to re-open

arguments which they ought to have brought before a previous adjudicator. In my view,

it is too fine a distinction between general traffic control costs and traffic control costs

associated during road surfacing to argue that the Claimant should be given “another

bite of the cherry”. In reaching this conclusion I have relied upon Macfarlane JA’s

reasoning in Dualcorp at [72] where he spoke of a “once only opportunity” to argue one’s

case. This approach should be distinguished from the situation where no claim is made

by the Claimant in respect to a particular piece or type of work. But when a claimant has

claimed for such work and has not performed any other works since that work was

previously adjudicated, in my view a respondent is entitled to consider that it will not face

any further claims in respect to it and that any attempt to so by the Claimant is akin to an

abuse of process.

73. In the premises, in respect to this item, I prefer the submissions of the Respondent and I

value the item at nil.

Item 5 – Variation # 17 – Three weeks traffic control

74. The Claimant seeks payment for this item in the sum of $15,428.64 including GST being

for traffic control between the period of 23 January to 16 February 2011.





75. The Respondent rejects the Claimant’s entitlement to this aspect of the claim arguing

that the Claimant was never directed to accelerate the works. The Respondent’s s.27(2)

argument is also raised to support the Respondent’s assertions.

76. The Claimant submits that it is irrelevant who ordered the compression of the work.

Whilst I do not necessarily agree with that submission, I have previously found that the

works were compressed by virtue of the requirement to complete the works by the end

of the school holidays. This is not a valid reason for withholding payment.

77. However, in respect to the Respondent’s s.27(2) argument, for the reasons I have

expressed in relation to Variation 16 above, I am of the view that the Claimant ought to

have claimed for the traffic control costs in the adjudication application before Ms

MacKenzie. In the premises, I do not consider that the Claimant has the entitlement to

re-agitate this issue now before me and I value the item at nil.

Item 7 – Variation # 18 – Additional Traffic Controllers

78. The Claimant seeks payment for this item in the sum of $16,784.22 excluding GST for

additional traffic controllers said to have been required between 5 January and 14 April

2011, amounting to an additional 28.5 days of labour.

79. The Respondent challenges the Claimant’s entitlement on the basis that the Claimant

was never directed to provide more traffic controllers and that the number of traffic

controllers it employed, was a matter for the Claimant. It also argues that the

Respondent is attempting to disguise the work the subject of this variation as new work

whereas it had been included in previous variations. The Respondent also maintains its

s.27(2) argument.

80. The Respondent’s principle submission has substance in my view. The Claimant was

responsible for supplying appropriate traffic control for the works to be performed. I

accept that the Claimant’s email dated 24 November 2010 which attached the tender

sought to qualify the number of controllers to one, but absent a direction from the

Respondent to increase the number of traffic controllers in my view, the Claimant is

responsible for those additional costs.

81. If I am wrong in relation to the contractual entitlement to claim for the additional traffic

controller then in my view, for the reasons I have already expressed in relation to

Variations 16 and 17, I am of the view that the Claimant ought not be permitted to re-

agitate its entitlement to claim for traffic control. In the premises, I value this tem at nil.





Item 8 – Variation # 19 – Demobilsation and remobilsation

82. The Claimant seeks payment for this item in the sum of $6,000.00 excluding GST for the

purported demobilisation and remobilisation of men caused by GCCC design error and

the stand down of work pending its redesign.

83. The Respondent rejects the Claimant’s entitlement to this aspect of the claim on the

basis that the Payment Claim does not comply with s.17(2)(a) of the Act because the

Respondent says, it fails to identify the dates when the demobilisation and remobilisation

are alleged to have occurred.

84. In the alternative, the Respondent relies upon its s.27(2) argument.

85. I am unconvinced that the Payment Claim did not sufficiently identify this aspect of the

Payment Claim. It appears that the issue has been well ventilated in the past, however

that leads to the difficulties of the Respondent’s s.27(2) argument.

86. The Claimant in the Application concedes that this item was dealt with by Ms MacKenzie

in the previous adjudication decision and that she determined that no payment was

allowed because insufficient evidence had been provided9. Ms MacKenzie said:

―143. I accept that this a (sic) variation as it was for work not part of the Lump Sum price,

however I cannot value the claim on the evidence before me.

144. Absent further evidence such as site diaries, or a Statutory Declaration of those

persons who attended such meetings, I am unable to value the variation and accordingly

I allow $0.00 for V006.‖

The Claimant submits that “Nothing prevents resubmission of this claim with better

details”.

87. I reject the Claimant’s submissions. Ms MacKenzie clearly rejected the Claimant’s

entitlement to the amount claimed which I note was only for $1,620.00 for project

management costs arising out of the demobilisation and remobilisation for want of

evidence. I have previously rejected the Claimant’s attempt to re-litigate such matters

on the strength of Macfarlane JA’s views in Dualcorp at [70] – [72]. I can see no good

reason why in relation to this item I ought to come to any different conclusion. I note that

the previous claim was restricted to the claim for project management and that the claim

9 See paragraphs 143-4 of the previous adjudication decision





before me is broader in that it deals with various other employees and contractors of the

Claimant, but that does not enable the Claimant to escape from its obligations under

what His Honour referred to as the Claimant’s “once only opportunity” obligations.

88. In the premises, I value this aspect of the claim at nil.

Retentions

89. The Claimant in the Payment Claim sought the release of retention monies held by the

Respondent in the purported sum of $11,196.27.

90. The Respondent denied that it was withholding the amount claimed. Rather the

Respondent asserted that it was holding in retention the sum of $6,157.94 including

GST. The Respondent further argued that retention has been applied to the progress

payments in accordance with the understanding between the parties in relation to this

project as it had done on other projects.

91. The Claimant in the Application accepts that the Respondent is in fact only withholding

retentions in the sum of $6,157.95 but makes no mention of whether it agreed to the

Respondent withholding that money or not, or the terms on which it may be released.

92. In the premises, I simply do not know whether the Claimant maintains its entitlement to

the release of the retention. Neither party has provided me with any details of the

contractual entitlement for the Respondent to withhold the monies or how those monies

are to be distributed and when. In the premises, I am unable to value this aspect of the

claim.

Amount Determined

93. As detailed in Schedule A, attached hereto, I am satisfied that the Claimant was entitled

to receive payment on account of performing the works in the sum of $6,561.50

including GST (“the adjudicated amount”).

Due date for payment and Interest

94. Pursuant to s.26(1)(b) of the Act, I must determine when the adjudicated amount is

payable by the Respondent pursuant to s.15 of the Act.

95. Neither party made any submissions on the matter and there is no evidence as to the

mechanism for determining the due date under the Contract. In the premises, I am

satisfied that the statutory default period under s.15(1)(b) applies, namely 10 business

days after the Payment Claim was served.





96. I am satisfied that the Payment Claim was served on 3 August 2011. Therefore the due

date for payment was 17 August 2011.

97. Section 26(1)(c) of the Act provides that I must also decide the rate of interest payable

on any amount.

98. When determining the rate of interest payable on the unpaid amount of a progress

payment that has become payable, reference must be had to s.15(2) and where

applicable s.15(3) of the Act.

99. Those provisions provide:

―(2) Subject to subsection (3), interest for a construction Contract is payable on the unpaid amount of a progress payment that has become payable at the greater of the following rates—

(a) the rate prescribed under the Supreme Court Act 1995, section 48(1) for debts under a judgment or order;

(b) the rate specified under the Contract.

(3) For a construction Contract to which Queensland Building Services Authority Act 1991, section 67P applies because it is a building Contract, interest is payable at the penalty rate under that section.‖

100. Neither party made any submissions regarding the applicable rate of interest payable.

101. In the premises, I am satisfied that the statutory default provisions should apply, namely

that the rate of interest should be calculated under s.48(1) of the Supreme Court Act

1995 for debts under a judgment or order.

Costs

102. Pursuant to s.34(3)(a) of the Act, the Claimant and Respondent are jointly and severally

liable to pay the fees of the ANA.

103. Pursuant to s.34(3)(b) of the Act, each party is liable to contribute to the payment of the

ANA’s fees in equal proportions unless otherwise decided by me.

104. Pursuant to s. 35(2) of the Act, the Claimant and Respondent are jointly and severally

liable to pay the adjudicator’s fees and expenses.

105. Pursuant to s.35(3) of the Act, the Claimant and Respondent are each liable to

contribute to the payment of the adjudicator’s fees and expenses in equal proportions

unless otherwise decided by me.





106. Therefore, ss.34(3)(b) and 35(3) of the Act provide me with a discretion to decide the

proportion that the Claimant and the Respondent are liable to contribute to the payment

of the ANA’s fees and my fees and expenses.

107. It is difficult to imagine how two parties could have more successfully complicated this

dispute. It is little wonder that the parties’ communications appear to have broken down

when there was no actual written contract setting out the parties’ rights and obligations.

Each of them are equally to blame in that regard.

108. Whilst the Respondent has been successful in defending much of the claim, the

Claimant has enjoyed some, albeit minor success. I have taken into consideration the

very disjointed manner in which the Respondent has conducted its affairs throughout this

adjudication process and I am of the view that this should have some bearing on the

apportionment of the adjudication costs because of the additional work it required me to

perform.

109. On balance, I believe this is not an appropriate matter for me to exercise my discretion. I

decide that the Claimant and the Respondent are equally liable for the payment of the

ANA’s fees and the Adjudicator’s fees and expenses pursuant to ss.34 and 35 of the

Act.

Mr Andrew Wallace

Adjudicator

15 September 2011

SCHEDULE A

ITEM

DESCRIPTION

CLAIMED

AMOUNT

SCHEDULED

AMOUNT

ADJUDICATED

AMOUNT

ITEM 101 $3,050.40 $0.00 $0.00

VARIATION # 14 $5,708.00 $0.00 $2,560.00

VARIATION # 15 $3,405.00 $0.00 $3,405.00

VARIATION # 16 $2,000.00 $0.00 $0.00

VARIATION # 17 $15,428.64 $0.00 $0.00

VARIATION # 18 $16,784.22 $0.00 $0.00

VARIATION # 19 $6,000.00 $0.00 $0.00

RETENTIONS $11,196.27 $0.00 $0.00

Sub-Total $63,572.53 $0.00 $5,965.00

GST $5,237.63 $596.50

Total Amount $68,810.16 $0.00 $6,561.50