Queensland Concrete Drilling and Sawing Pty Ltd v Laing O’Rourke Australia Construction Pty Ltd

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29/01/14 – Queensland Concrete and Sawing Pty Ltd v Laing O’Rourke Australia Construction Pty Ltd

Adjudication Application No 276

Authorised Nominating Authority

Adjudicator

Registration Number

Claimant

Respondent

Project

 

Payment Claim

Payment Schedule

Adjudication Application

Adjudicator’s Acceptance

Adjudication Response

Adjudication Decision

Adjudicated Amount

Due Date for Payment

Rate of Interest

Apportionment of Adjudication Fees

Queensland Law Society

Chris Lenz

J622914

Queensland Concrete Drilling and Sawing P/L

Laing O’Rourke Australia Construction Pty Ltd

Concrete Cutting and Sawing at 100 McLachlan

Street, FORTITUDE VALLEY QLD 4006

Served 12 December 2013 for $589,883.24

Served 2 January 2014 for $19,616.14

16 January 2014

21 January 2014 (email & letter)

23 January 2014

29 January 2014

N/A

N/A

N/A

Claimant  70%

Respondent  30%

 

 

Table of Contents

A. DECISION

B. REASONS

I.Background

II.Application to an ANA and appointment of Adjudicator

III. Material provided in the adjudication

a. Claimant’s Material

b. Respondent’s Material

IV. The Construction Contract

V. Jurisdictional issues

a. the reference date issue

b. The ULC issue

c. The multiple contract issue

VI. The adjudicated amount

VII. Due date for payment

VIII. Rate of interest

IX. Authorised Nominating Authority and Adjudicator’s fees

A.    DECISION

I have made a decision under the Building and Construction Industry Payments Act 2004 (“BCIPA”). Having read and had regard to the payment claim, the payment schedule, and the submissions supporting the adjudication application and the adjudication response I decide that I do not have jurisdiction to adjudicate this dispute.

B.    REASONS

I.Background

  1. Queensland Concrete Drilling and Sawing Pty Ltd (referred to in this adjudication as the “claimant”) was engaged by Laing O’Rourke Australia Construction Pty Ltd (referred to in this adjudication as the “respondent”) to carry out concrete drilling and sawing at 100 McLachlan Street FORTITUDE VALLEY 4006 in Queensland (the “work”).
  2. The work carried out included concrete drilling, sawing, jack hammering, and wet vacuuming at the McLachlan and Ann Street building, FORTITUDE VALLEY 4006 (the “site”).
  3. The claimant commenced the work on site on 10 May 2011 until 16 October 2013.
  4. The claimant asserted in its material that:

(i)between 10 May 2011 and 24 November 2011 the work carried out for the respondent was subject to the claimant’s terms of trade printed on the reverse of the claimant’s prices list dated 25 March 2011;

(ii) between 25 November 2011 and 3 August 2012 the work was subject to a written sub contract signed by the claimant and respondent;

(iii) between 4 August 2012 and 19 September 2013 the written sub contract was suspended indefinitely and an agreement based on new published rates applied with oral instructions to proceed with work;

(iv) between 4 August 2012 and 16 October 2013 it was entitled to variations carried out as a result of scope change, rate queries waiting and overtime.

  1. The respondent in its payment schedule (referred to in more detail below) identified its primary position of 3 jurisdictional grounds upon which it says it was not liable to pay the claimant, as well as analysing each separate invoice and providing its reasons for non-payment in tabular format.
  2. The parties referred to negotiations that were conducted prior to the submission of the adjudication application, and it appears from the material that after the payment claim a sum of $343,524.21 (including GST) was paid by the respondent on 16 December 2013.
  3. Essentially the claimant asserts in its adjudication submissions that it is pursuing $181,458.89 including GST, together with interest under section 67P of the Queensland Building Services Authority Act 1991 in this adjudication.
  4. The respondent in its response submissions relating to its secondary position identified that the amount in dispute was $200,615.02 broken up into the value of the works disputed as $145,741.43, together with penalty interest of $54,873.61.
  5. There is a disparity between what each party says is in dispute, but before descending into those details it is necessary to deal with some of the administrative procedures associated with an adjudication, followed by an analysis of the jurisdictional issues raised by the respondent.

 II. Application to an ANA and appointment of Adjudicator

  1. The claimant applied to the QUEENSLAND LAW SOCIETY (“QLS”) on 16 January 2014 for adjudication. By letter dated 20 January 2014 QLS referred the adjudication application no. 276 for me to determine. 
  2. QLS is an Authorised Nominating Authority under BCIPA and I am a registered adjudicator under BCIPA with registration number J622914.
  3. By letter dated 21 January 2014 sent by email and post to the claimant and to the respondent, I accepted the Adjudication Application and thereby became the appointed Adjudicator.

 III. Material provided in the adjudication

  1. The claimant provided a written adjudication application together with a CD containing all its electronic files.

a.      Claimant’s Material

The adjudication application documents comprised the following:

(i)Adjudication Application served on 16 January 2014, together with its submissions, plus a CD-ROM containing:

(a)the copies of invoices divided into subsections of:

a. “invoices amended and reissued”;

b. “invoices claimed as not received”;

c. “invoices disputed”;

d. “invoices not disputed;

e. payment schedule PS. 05 dated 27 November 2013;

f. payment schedule PS. 06 dated 2 January 2014;

g. 15 photographs;

h. price lists;

i. the claimant’s various terms of trade;

j. various quotations dated between 21 April 2011 and 14 October 2013;

k. affidavit of Catherine Thomson dated 16 January 2014

l. statutory declarations of Catherine Tracy Thomson (13 of), Simon Denham (unsigned) , Robert Orford, James John Stewart (2 of), Clive Harmsworth (unsigned), Bill Munro;

m. signed written sub contract L95/000 dated 25 November 2011.

 b.      Respondent’s Material

  1. The respondent provided an adjudication response on 23 January 2014, comprising:

(i)adjudication response submissions;

(ii)witness statements of:

(a)Kris Peter John McKerron dated 23 January 2014;

(b)Clive Harmsworth dated 22 January 2014, in which Mr Harmsworth stated that he had never previously seen the unsigned statutory declaration referred to in the claimant’s submissions above;

(iii)the payment claim;

(iv)the payment schedule;

(v)the signed written sub contract L 95/000 dated 25 November 2011.

 IV. The Construction Contract

  1. I need to decide whether the claimant’s and respondent’s documents demonstrate that there is a “construction contract” under BCIPA.
  2. Schedule 2 of BCIPA states that a construction contract means a “contract, agreement or other arrangement under which one party undertakes to carry out construction work for, or to supply related goods and services to, another party.”
  3. Before analysing the issue of a contract, agreement or other arrangement, I first turn to the issue of whether the claimant carried out construction work.
  4. Construction work is defined in section 10of BCIPA and concrete drilling and sawing in my view falls within the meaning of section 10(1)(a) of BCIPA which provides:

“the construction, alteration, repair, restoration… demolition or dismantling of buildings or structures, whether permanent or not, forming, or to form, part of the land;”

  1. I am therefore satisfied that the claimant carried out construction work in accordance with the definitions in section 10 (1) of BCIPA.
  2. I need to decide whether the contract whereby it undertook to carry out this work is a construction contract within the meaning of BCIPA.
  3. The claimant refers to various periods in which it asserts that it carried out work on behalf of the respondent, with it:

(i)initially carrying out work in accordance with its price list dated 25 March 2011;

(ii)then from 25 November 2011 to 3 August 2012 in accordance with a written sub contract dated 25 November 2011;

(iii)then, from 4 August 2012 to 19 September 2013 in accordance with verbal directions by the respondent in accordance with a revised price list;

(iv)in addition, from 4 August 2012 to 16 October 2013 carrying out variations, arising out of scope change, rate queries, waiting and over time.

  1. It is important therefore to consider the definition in schedule 2, where a construction contract means “a contract,, agreement or other arrangement under which one party undertakes to carry outconstruction work for, or to supply related goods and servicesto, another party.
  2. This is an elastic definition and in the case of Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd Anor [2012]QCA 276, Philippedes J held that:

[56] ….What is required for the purposes of the definition of “construction contractis that it is one under which a party undertakes to carry out some “construction work”.

  1. If one applies this definition to the various periods identified by the claimant, I am satisfied that the claimant undertook to carry out construction work for the respondent.
  2. However, one of the jurisdictional issues identified by the respondent is that there were several construction contracts asserted by the claimant, which it submits makes the payment claim invalid as a result of a recent decision in the Supreme Court.
  3. I therefore need to refer to the 3 important jurisdictional issues that have been raised in the respondent’s submissions that require my attention.

V. Jurisdictional issues

  1. In the payment schedule dated 2 January 2014 the respondent identified 3 jurisdictional issues to the claimant, which it said demonstrated that the payment claim was invalid, such that no payment was due and in fact $728,524.21 (including GST) was owing to the respondent.
  2. Jurisdictional issues are fundamental to the adjudicator’s powers to descend into the merits of a dispute in order to value a payment claim and decide the amount (if any) the respondent is required to pay the claimant.
  3. Unfortunately, the claimant did not respond to any of these 3 jurisdictional issues in its adjudication submissions. Nevertheless, it is imperative that these issues be addressed before valuation of the payment claim can occur, because an adjudication decision without jurisdiction serves no useful purpose.
  4. These 3 jurisdictional issues identified by the respondent were in summary:

(i)the claimant was unlicensed and therefore not entitled to any payment under section 42 of the Queensland Building and Construction Commission Act 1991 (the “QBCCA”). This will be called the ULC issue;

(ii)the payment claim was based on there being 2 or more construction contracts, which was prohibited by Matrix Projects (Qld) Pty Ltd v Luscombe [2013] QSC 4 (“ Luscombe”). This will be called the multiple contract issue;

(iii)the payment claim was not submitted on a valid reference date of 31 October 2013, as required by the case of Reed Construction (Qld) Pty Ltd v Martinek Holdings Pty Ltd [2011] 1 Qd R 28 (“Martinek”). This will be called the reference date issue.

  1. In the adjudication response dated 23 January 2014 the respondent referred to the 3 issues identified above in a different order. I will now consider each of these jurisdictional issues and for ease of analysis will consider theissues as follows.

 a.      the reference date issue

  1.  The respondent refers to the case of Martinek as authority for the proposition that a payment claim must be made on a reference date if the contract fixes a reference date.
  2. The respondent asserts that the reference date was 31 October 2013, and this payment claim was made on 12 December 2013, which therefore made it invalid.
  3. Although the Court of Appeal has not had to deal with the Martinek decision directly; in my view Mr. Justice Fraser in Spankie & Ors v James Trowse Constructions Pty Limited [2010] QCA 355 dealt with the issue of “from a reference date” as identified in section 12 of BCIPA in paragraphs [19] and [20] as follows:

“[19] The appellant’s construction is also not readily reconcilable with the statutory scheme. Section 17 is an aspect of the procedure for enforcing the entitlement to progress payments created by s 12. Section 12 creates such an entitlement from each reference date (my underlining). Section 12 is expressed in very general terms. …

 [20] Returning to the legislative provisions, there is nothing in the definition of the “reference date” to cut down the broadly expressed entitlement created by s 12. The definition merely identifies the date from which each right to a progress payment accrues (my underlining)”.

  1. Accordingly, I am satisfied that a payment claim made on 12 December 2013 is from a reference date of 31 October 2013, and does not contravene section 12 of BCIPA. I therefore reject this jurisdictional issue raised by the respondent.

b.      The ULC issue

  1. This is an extremely important consideration in the context of this adjudication, particularly given that the claimant was put on notice about this reason for non-payment in the payment schedule, and yet did not make any submissions in response in the adjudication application.
  2. The respondent stated that the claimant was required to hold a licence because it had undertaken building work within the meaning of the QBCCA.
  3. The respondent asserted that none of the exclusions from the definition of “building work” in Regulation 5 and Schedule 1AA of the Queensland Building and Construction Commission Regulation 2003 (the “Regulations”) apply to the work carried out by the claimant, as demonstrated by the claimant’s invoices and the witness statement of Kris Peter John McKerron.
  4. Furthermore, the respondent submitted that the claimant, by claiming a penalty interest under section 67P of the QBCCA, impliedly admitted that it was undertaking building work on the project.
  5. The respondent asserted that it had carried out online licence searches and established that the claimant did not hold a licence for any class of building work.
  6. The respondent referred to the case of Cant Contracting P/L v Casella & Anor [2006] QCA 538, in which the Court of Appeal established that an unlicensed contractor is unable to utilise BCIPA for payment of a payment claim. At paragraph 3.12 of the respondents submissions, the respondent referred to McMurdo J who held that:

“[61] …. This scheme for progress claims and their recovery is evidently unsuitable for the case of unregistered builders, because it operates from a premise of the builder’s entitlement being according to its contract. The long title of the Payments Act describes it as an “Act to imply terms in construction contracts …” It is unlikely the Act was intended to benefit builders who cannot enforce the payment provisions of their contracts, especially when the making of such a contract involved an offence by the builder. Ultimately, it far from appears that the Payments Act was intended to override the disentitlement according to s 42; the contrary appears. In my view, the Payments Act operates only when there is a construction contract of which the terms as to payment are enforceable by the builder.”

  1. It is clear from the decision of Cant that the issue of licensing lies at the heart of whether a claimant is entitled to exercise contractual rights for payment.
  2. Accordingly I need to consider section 42 of the QBCCA Act, which provides as follows:

“42 Unlawful carrying out of building work

(1) A person must not carry out, or undertake to carry out, building work unless that person holds a contractor’s licence of the appropriate class under this Act (my underlining).”

  1. I’m satisfied that the claimant carried out building work as defined by the QBCCA. Unfortunately, the respondent has not identified to me what appropriate class of licence the claimant was required to have under the QBCCA. In my view, the respondent who has made this vitally important assertion that the claimant was required to be licensed, which if accepted, meant that the claimant was not entitled to make any claim whatsoever, is required to prove its assertion.
  2. I carried out a detailed review of the QBCCA and its Regulations and could not find anywhere where concrete drilling and sawing was an activity identified under any particular licence class.
  3. s42 makes reference to the carrying out unlicensed building work “…unless that person holds a contractor’s licence of the appropriate class under this Act.” In my view, if the respondent asserts that the claimant was unlicensed, it is incumbent upon it to demonstrate what appropriate class of licence the claimant was required to have under the QBCCA.
  4. It may be that there is a gap in the QBCCA (about which I make no finding) such that there is no requirement for someone drilling and sawing into concrete as falling within a category for which someone needs to be licensed. As far as I could ascertain from my research, this activity did not fall within any of the classes of building work, carpentry work or concrete work.
  5. There was no evidence put before me that other concrete drillers and sawers have a licence, nor was there any evidence from the QBCC that such a licence class exists, or that the activities fall within a particular existing category of licence which may have assisted in discharging the respondent’s onus.
  6. In such an event, it may be that there is merely an anomaly that needs to be cured by the legislature. In my view, to deny a claimant its right to a payment claim on the basis of an allegation of unlicensed contracting, requires the respondent to discharge its legal and evidentiary onus in relation to this issue, and I do not believe that it is done so.
  7. Accordingly, I reject the respondent’s submissions in relation to this jurisdictional issue.

c.       The multiple contract issue

  1. The respondent stated that the payment claim had been made in relation to more than one construction contract (as that term is defined under BCIPA), and in fact referred to 4 separate periods, each with its own contractual arrangement, and it summarised the periods as follows:

(i)period 1: 10 May 2011 to 24 November 2011;

(ii)period 2: 25 November 2011 to 3 August 2012;

(iii)period 3: 4 August 2012 to 19 September 2013;

(iv)period 4: 4 August 2012 to 16 October 2013

  1. At paragraph 2.5 of the response submissions the respondent stated that there were multiple construction contracts over the duration of the claimant’s works as follows:

(i) the period 25 March 2011 until 25 November 2011, was covered by the price list dated 25 March 2011 and the claimant’s terms and conditions of trade based on quotations being submitted by the claimant and accepted by the respondent. The respondent asserted that the acceptance of each quotation gave rise to a separate contract;

(ii)the sub contract dated 25 November 2011, which was later varied and was not terminated.

  1. It contends that if a payment claim is made in respect of more than one construction contract it is invalid according to paragraphs 17 and 18 of Mr Justice Douglas’ decision in Luscombe.

Claimant’s material on that this point

  1. In the payment claim, as referred to in paragraph 4 above, the claimant separated the dispute into 4 periods of time and the contractual basis upon which it made the claim for the various periods were as follows:

(i)period 1 – the claim was based on the terms of trade identified in the original prices stated on 25 March 2011;

(ii)period 2 – the claim is based on the written sub contract dated 25 November 2011;

(iii)period 3 – the claim was based on a verbal agreement as regards hourly rates and a new published price list;

(iv)period 4 – the claim was based on variations associated with scope change, rate queries, waiting and over time.

  1. In the adjudication submissions (on page 7), the claimant stated that it disagreed with the “Respondent’s mistaken belief that the written agreement applies retrospectively from the signing date and continued to apply after the claimant’s project engagement was suspended by the Respondent’s on-site staff. The Respondent is also attempting to apply the written agreements terms and conditions to the quoted works and ignoring the written quote exclusions.”
  2. In addition, the claimant submitted that prior to 25 November 2011 the price list published on 25 March 2011 was applicable to the project works performed by the claimant.
  3. On page 8 of the application submissions, the claimant submitted that post 3 August 2012, the written agreement was effectively suspended indefinitely, and that there were verbal negotiated changes for additional and subsequently continuing works based on new published rates.
  4. In the affidavit of Catherine Thomson dated 16 January 2014, the deponent under the headings “engagements and agreements” makes reference in paragraph 8 to a price list being submitted to the respondent dated 25 March 2011 and that work commenced based on verbal instructions.
  5. In paragraph 19 the deponent referred to an agreement being signed on 25 November 2011, which she said echoed the verbal agreement. I take that to mean the agreement that commenced on or about 10 May 2011.
  6. It is evident from the written agreement that it did not echo the verbal agreement, because at paragraph 25 of the deponent’s affidavit she identified that items had been omitted without her knowledge, and that she was under pressure to sign the written agreement serves to receive payments on all overdue invoices.
  7. In paragraph 40 the deponent refers to being advised by the respondent on 3 August 2012 that it would no longer be working on the project, and yet although the claimant was temporary removed from the site, it was requested to return to the site within a very short space of time.
  8. From paragraph 48 onwards, the deponent refers to variations due to scope changes, in which she asserted the respondent agreed that the quotation provided by the claimant for the temporary slip form work was no longer applicable, and that the final price would be reviewed on completion (paragraph 56).
  9. The deponent added in paragraph 56 that “This undertaking that the quote was no longer valid allowed us to proceed with peace of mind knowing we would be paid for the work completed, which instead of taking 6 weeks, took almost 6 months.”

Analysis of the facts in light of Luscombe

  1. Whether one accepts the claimant’s or respondent’s submissions in relation to the construction contract issue, it is clear that there were up to 4 contracts if one accepts the claimant’s version, and multiple contracts if you accept the respondent’s version.
  2. In the case of Luscombe, the court was dealing with 9 properties subject to individual written purchase orders pursuant to a “period sub contract” and 5 properties where verbal directions were given on the basis of a “do and charge” basis, in which the subcontractor Luscombe was not obliged to carry out the work until it accepted the particular direction.
  3. At first blush it appears as if one could distinguish this case from the facts in this adjudication on the basis that there were separate properties which the subcontractor worked on for the builder, whereas in this adjudication there was only one site on which the claimant work for the respondent.
  4. However, in Luscombe the arguments dealt with whether all the separate contracts could satisfy the definition of an “arrangement” as contemplated by schedule 2 of BCIPA, thereby falling within one construction contract for the purposes of BCIPA. This may have satisfied the court in relation to the period sub contract (i.e. the 9 separate properties), but the appellant argued that the “do and charge” work could not be considered not part of that arrangement. Therefore, it seems as if the fact that there were separate properties involved was not an important considerations by the Court, but it was rather the actual contractual arrangements by which the parties had agreed to regulate themselves that was of primary importance.
  5. For example, at paragraph 19, His Honour held that “It seems to me, however, that the work done was divisible into work done pursuant to the period sub contract and the “do and charge” work done pursuant to another regime where Luscombe builders retained the right to decide whether to perform the work when it was offered. In respect of that work there would also been differing reference dates between the 2 different types of arrangement, either the 15th or the 30th of the month under the period sub contract or the end of the month as the default reference date under the act for the “do in charge” work.
  6. Having regard to the claimant’s 25 March 2011 pricelist and its attendant terms and conditions of trade, clause 4.5 states that “Time for payment for the services shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the services.” Clause 4.6 provided that at the claimant’s discretion payment was due either 7 or 30 days following the date of the invoice.
  7. It is open to infer that the time for making a claim under this 25 March 2011 pricelist could be on delivery of service because time for payment was of the essence. In my view, given the importance attached to time, I find that a payment claim could be made at any time upon delivery of service, such that there was no prescribed date each month for a payment claim, or the default option under BCIPA of the end of the month. In my view, the claimant’s terms and conditions could not have allowed that claims could only be made at the end of the month.
  8. By way of contrast in the schedule, Clause 4 of the written sub contract dated 25 November 2011 provided that the date for lodgement of progress claims was the last day of each month.
  9. Accordingly, in my view, there are separate reference dates, at least for the period 10 may 2011 until 24 November 2011 and for the period 25 November 2011 onwards.
  10. If I accept what the claimant asserts were the other contractual arrangements post 4 August 2012, i.e. for periods, 3 and 4, again based on price lists and the terms and conditions of trade, then the reference date is likely to again be any time upon delivery of service. However, this pricelist identified separate prices for work, so that one could not consider that the agreement or contract for these periods was the same as period 1. Furthermore, in paragraph 56 of the affidavit of Catherine Thomson she made reference to the quotes that had been submitted were no longer applicable, and that the “final price would be reviewed on completion.” This suggests to me that the period 3 and period 4 contracts were different, thereby creating for different contracts for each of the 4 different periods.
  11. Furthermore, whilst the claimant submits that the 25 March 2011 pricelist did not differ from the written sub contract, it is evident from Catherine Thomson’s own evidence that there were in fact differences in the schedule of rates pricelist. The excess steel damaging drill bits was not included in the written sub contract and the written sub contract specified that the sub contract had included within the rates, all maintenance and breakdowns of machinery, which according to the respondent had previously been charged by the claimant under the 25 March 2011 pricelist.
  12. In addition, the written sub contract imposed conditions different from those identified in the claimant’s 25 March 2011 terms and conditions. The written sub contract was 37 pages long, including various annexures, whereas the 25 March 2011 terms and conditions consisted of only 1 page.
  13. As Mr Justice Douglas paragraph 20, said, “Accordingly, the payment claim made cannot be described as one being made under a single construction contract whether the relationship be described more generally as an arrangement or not. Therefore the variety of different types of contract for construction work relied upon in the payment claim is fatal to its validity.”
  14. I am constrained to follow Luscombe because the principles upon which that case was decided falls in my view within the facts in this adjudication.
  15. I have found different contract conditions for the first 2 periods. Whilst the 3rd and 4th periods appeared to default back to the pricelist terms and conditions, they had different rates from period 1, and there was a difference between period 3 and period 4 contracts as identified in paragraph 56 of Catherine Thomson’s affidavit.
  16. Furthermore, the contract had different reference dates, so I cannot consider that the 4 periods identified above and the agreements during those periods, could reasonably be considered a single construction contract.
  17. Accordingly, I decide that I am constrained by the authority of Luscombe that I have no jurisdiction to further consider the matter.
  18. s26 (1) of BCIPA requires me to decide on the amount of progress payment, if any, to be paid by the respondent to the claimant.
  19. I am unable to identify any amount because I do not have jurisdiction to value the payment claim.
  20. s26 (1) of BCIPA requires me to decide on the date on which any amount becomes payable.
  21. I am unable to identify any date because there is no amount payable, because I do not have jurisdiction to value the payment claim.
  22. s26 (1) of BCIPA requires me to decide the rate of interest payable on any amount.
  23. Given that I’ve not valued any amount because I do not have jurisdiction, there is no rate of interest payable.
  24. The default provision contained in s34(3)(b) of BCIPA makes the parties liability for the ANA’s fees is in equal proportions, unless I decide otherwise. The same approach applies to the adjudicator’s fees in s35(3) of BCIPA, with equal contributions, unless I decide otherwise. 
  25. The claimant has been unable to obtain a valuation of the payment claim from the adjudicator because of lack of jurisdiction, which has already put it in a position of disadvantage.
  26. Nevertheless, the respondent in its payment schedule had identified 3 jurisdictional reasons for non-payment. The claimant did not refer to any of the respondent’s jurisdictional reasons for non-payment in its adjudication submissions.
  27. The respondent has succeeded in demonstrating that the multiple contract issue is one of jurisdiction, and in schedule 2 of its payment schedule, it referred to the case of Luscombe in its reasons for non-payment. In my view these payment schedule reasons required submissions from the claimant as to why the case should be distinguished or not followed.
  28. However, time was spent by me, considering the other 2 unsuccessful jurisdictional challenges so that in the circumstances, therefore, I decide that the claimant bear 70% and the respondent 30% of the ANA’s fees and my fees under section 35(3) of BCIPA.

VI.The adjudicated amount

  1. s26 (1) of BCIPA requires me to decide on the amount of progress payment, if any, to be paid by the respondent to the claimant.
  2. I am unable to identify any amount because I do not have jurisdiction to value the payment claim.

VII.Due date for payment

  1. s26 (1) of BCIPA requires me to decide on the date on which any amount becomes payable.
  2. I am unable to identify any date because there is no amount payable, because I do not have jurisdiction to value the payment claim.

VIII.Rate of interest

  1. s26 (1) of BCIPA requires me to decide the rate of interest payable on any amount.
  2. Given that I’ve not valued any amount because I do not have jurisdiction, there is no rate of interest payable.

 IX. Authorised Nominating Authority and Adjudicator’s fees

  1. The default provision contained in s34(3)(b) of BCIPA makes the parties liability for the ANA’s fees is in equal proportions, unless I decide otherwise. The same approach applies to the adjudicator’s fees in s35(3) of BCIPA, with equal contributions, unless I decide otherwise.
  2. The claimant has been unable to obtain a valuation of the payment claim from the adjudicator because of lack of jurisdiction, which has already put it in a position of disadvantage.
  3. Nevertheless, the respondent in its payment schedule had identified 3 jurisdictional reasons for non-payment. The claimant did not refer to any of the respondent’s jurisdictional reasons for non-payment in its adjudication submissions.
  4. The respondent has succeeded in demonstrating that the multiple contract issue is one of jurisdiction, and in schedule 2 of its payment schedule, it referred to the case of Luscombe in its reasons for non-payment. In my view these payment schedule reasons required submissions from the claimant as to why the case should be distinguished or not followed.
  5. However, time was spent by me, considering the other 2 unsuccessful jurisdictional challenges so that in the circumstances, therefore, I decide that the claimant bear 70% and the respondent 30% of the ANA’s fees and my fees under section 35(3) of BCIPA.

 

Chris Lenz

Adjudicator             

29 January 2014