SLIC B&D Pty Ltd v David Trinder  [2023] WASAT 1

Tom French | Penny Bond | Charlie Clifton

Key takeout

• An application for adjudication under the Construction Contracts (Former Provisions) Act 2004 (WA) does not require the construction contract to be attached, provided the contract is sufficiently set out in the application.
  
• This position is different under the new Building and Construction Industry (Security of Payment) Act 2021 (WA), which requires all adjudication applications to attach a copy of the construction contract or the relevant provisions of the construction contract.

Facts

SLIC B&D Pty Ltd (builder) was contracted to provide residential building work for a home owner (owner). The builder applied for adjudication under the Construction Contracts (Former Provisions) Act 2004 (WA) (Former Act) when the owner refused to pay the final payment claim in full.

The application attached a copy of an invoice which described the relevant works performed by the builder and the price for the works. The application did not separately attach a construction contract.

The adjudicator dismissed the application under section 31 of the Former Act on the basis that the builder did not serve a copy of the construction contract and payment claim giving rise to the payment dispute.

The builder applied to the State Administrative Tribunal for a review of the dismissal. In its review application, the builder contended the invoice contained a full description of the works and terms of the contract and therefore constituted the quote, the contract and the payment claim.

Legislative framework

Section 26 of the Former Act prescribes how an applicant may apply for adjudication and requires the application to set out the details of, or have attached to it:

• the construction contract;
• any payment claim that has given rise to the payment dispute; and
• all the information that the applicant seeks to rely on.

Although not relevant to this matter, the new Building and Construction Industry (Security of Payment) Act 2021 (WA) (New SOP Act) mandates that the application must be accompanied by a copy of the construction contract or a copy of the relevant contractual provisions.

Decision

The Tribunal noted that the Former Act does not require the construction contract to be attached to the application, as long as the application sets out the details of the contract.

The Tribunal set aside the adjudicator’s decision to dismiss the application on the basis that the invoice sufficiently detailed the terms of the contact and reduced the fundamental terms of the contract into writing. The invoice sufficiently set out the terms of the parties’ contract and the application therefore complied with section 26 of the Former Act.

While the New SOP Act was not relevant, the decision provides an important reminder about changes from the Former Act to the New SOP Act, which requires applications to be accompanied by a copy of the construction contract or the relevant provisions.