Saville v Hallmarc Construction Pty Ltd

(2015) 47 VR 177; [2015] VSCA 318

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Adjudication determination under security of payment legislation
4. › Jurisdictional fact
5. › Reference date as jurisdictional fact
6. › Whether reviewable error confined to straightforward calculation of time or arbitrary determinations
7. › Whether jurisdictional facts may require evaluation and assessment
8. › Building and Construction Industry Security of Payment Act 2002 (Vic), ss 9(2), 14, 23
1. Administrative Law
2. › Judicial review
3. › Jurisdictional error
4. › Jurisdictional fact
5. › Scope of review
6. › Whether reviewing court determines jurisdictional fact de novo on evidence before it
7. › Building and Construction Industry Security of Payment Act 2002 (Vic), ss 9(2)(d), 14(5)(b)
1. Contract
2. › Construction of written contract
3. › Pre-contractual negotiations
4. › Parol evidence rule
5. › Whether antecedent communications admissible to vary terms of written contract
6. › Whether scope of works extended beyond written terms
1. Practice and Procedure
2. › Application to adduce further evidence on appeal
3. › Whether evidence available before trial
4. › Whether evidence would produce different result
5. › Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 64.22(3)

Quick Take

The fixing of a reference date by an adjudicator under s 9(2) of the Building and Construction Industry Security of Payment Act 2002 (Vic) is a jurisdictional fact reviewable by the Supreme Court. Judicial review of adjudication determinations is not confined to straightforward calculations of time or arbitrary/capricious determinations; jurisdictional facts may require evaluation and assessment. Pre-contractual negotiations are inadmissible to vary the terms of a written construction contract where the contract has a plain meaning.