Supreme Court New South Wales

• Medium Neutral Citation: Nefiko Pty Ltd v Statewide Form Pty Ltd (No 2) [2014] NSWSC 840
• Hearing dates: 12 June 2014
• Decision date: 27 June 2014
• Jurisdiction: Equity Division
• Before: Ball J

Decision

Proceedings dismissed with costs.

• Catchwords: ADMINISTRATIVE LAW - judicial review - grounds of review - Building and Construction Industry Security of Payment Act 1999 (NSW) - adjudication determination - whether identity of parties to construction contract a jurisdictional fact - whether decision by adjudicator as to identity of contracting parties reviewable for jurisdictional error - distinction between determination of a jurisdictional fact with binding legal effect and the formation of an opinion by an administrative body in relation to a jurisdictional fact - whether denial of natural justice - whether adjudicator took into account all relevant factual matters
• Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
• Cases Cited: B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147; Barrier Wharfs Ltd v W Scott Fell & Co Ltd [1908] HCA 88; (1908) 5 CLR 647; Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153; Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 78 NSWLR 393; Fifty Property Investments Pty Ltd v O'Mara [2006] NSWSC 428; Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251; Howard Smith & Co Ltd v Varawa [1907] HCA 38; (1907) 5 CLR 68; IWD No 2 Pty Ltd v Level Orange Pty Ltd [2012] NSWSC 1439; Lederberger v Mediterranean Olives Financial Pty Ltd [2012] VSCA 262; Nefiko Pty Ltd v Statewide Form Pty Ltd [2014] NSWSC 442; R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598; Re Adams and Tax Agents' Board (1976) 12 ALR 239; Tomko v Palasty [2007] NSWCA 258; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707
• Category: Principal judgment
• Parties: Nefiko Pty Ltd (ABN 69 002 401 676) (Plaintiff); Statewide Form Pty Ltd (ABN 34 159 561 403) (First Defendant); Robert Sundercombe (Second Defendant)
• Representation: Counsel: J Glissan ESM QC with Ms L Walsh (Plaintiff); AJ Macauley (First Defendant); Solicitors: Pryor Tzannes & Wallis (Plaintiff); Avondale Lawyers (Defendant)
• File Number(s): 2014/94834
• Publication restriction: None

Judgment

Introduction

1 In these proceedings, the plaintiff, Nefiko Pty Ltd, challenges the validity of an adjudication determination of the second defendant, Mr Robert Sundercombe (the Adjudicator), made on 17 March 2014 in relation to a payment claim made by the first defendant, Statewide Form Pty Ltd, against Nefiko. The Adjudicator has filed a submitting appearance.

Background facts

2 Nefiko carries on the business of producing and selling finished marble and other fancy stone, mostly for bench tops and similar applications. The directors of Nefiko are Suk Chun Janette Cheong (Ms Cheong) and her sister, Suk Fan Angela Wong (Ms A Wong), who each own half the shares in Nefiko.

3 Ms Cheong owns a waterfront house in Woolwich where she lives with Ms A Wong, another sister, Veronica Wong (Ms V Wong), who also works for Nefiko, their mother and children.

4 In late 2013, Ms Cheong decided to arrange to have some building and landscape work done on the Woolwich property, including demolition of a swimming pool. She spoke to Mr Matthew Bell, a construction project manager with whom she had done some work, who suggested that she contact Mr John Elcham, who worked as a project manager for Statewide Form.

5 Mr Bell also spoke to Mr Elcham about the work Ms Cheong wanted done and Mr Elcham arranged for Mr Billy Farah, a director of Statewide Form, to meet with Ms Cheong. The first meeting was on 2 December 2013 at the Woolwich property. It was attended by Mr Farah and Mr Roberto Carera, a formworker employed by Statewide, and Ms Cheong and Ms A Wong.

6 Ms Cheong and Ms A Wong, on the one hand, and Mr Farah and Mr Carera, on the other, gave very different accounts of what happened and what was said during the course of the meeting, although there was clearly a discussion concerning the nature of the work that Ms Cheong wanted done. It is agreed that, during the course of that discussion, Ms Cheong gave Mr Farah a sketch that Ms A Wong had prepared showing what Ms Cheong wanted done. It is also likely that Ms Cheong told Mr Farah and Mr Carera that she owned the property, although Mr Farah (but not Mr Carera) denied that she did so.

7 According to Ms Cheong and Ms V Wong, there were further meetings on 3 and 4 December 2013, which they both attended, during which Mr Farah showed Ms Cheong samples of timber that could be used for the decking to cover the swimming pool area; and it seems likely that there were other meetings before work commenced, although in their affidavit evidence neither Mr Farah nor Mr Carera refer to them. Ms Cheong also says that, during the subsequent meetings, there was further discussion concerning the nature of the work that she wanted done.

8 Ms Cheong and Mr Farah agreed a price for the work of $50,000. According to Mr Farah, that agreement was reached at the first meeting and Ms Cheong agreed to a deposit of $9,000. Of critical importance is Mr Farah's evidence of the following conversation with Ms Cheong at that meeting:

I said: How do you want to pay for this work? Who do you want me to make the invoices out to?

She said: Make the invoices out to my company name Nefiko. Here is my business card with the details.

9 Mr Farah says that the conversation occurred in the presence of Ms A Wong and Mr Carera. Mr Carera gave evidence supporting Mr Farah's version of the conversation. Both Ms Cheong and Ms A Wong deny it; and both deny that Ms Cheong ever gave Mr Farah a copy of her Nefiko business card, although it is plain that Mr Farah obtained Ms Cheong's business card at some stage, since he annexes a copy to his affidavit.

10 According to Ms Cheong, the price of $50,000 was agreed at the meeting on 4 December 2013. She makes no reference to the payment of a deposit, although Nefiko's Amended Technology and Construction List Statement pleads that the parties agreed to a deposit of $9,000. Also according to Ms Cheong, there was a conversation between her and Mr Farah in the following terms:

Billy: ... How will you pay me?

Me: This is my own house, so I can pay cash and/or cheque as the job progresses. ...

Ms V Wong gives evidence of the same conversation in almost identical terms.

11 It is uncontentious that, during one of the conversations, Ms Cheong made it clear that Mr Farah was to take instructions from Ms A Wong.

12 Mr Farah carries on business through the defendant and there is a dispute whether the defendant's name was ever mentioned during the conversations. Ms Cheong places some emphasis in her affidavit evidence on the fact that she asked Mr Farah for his business card on a number of occasions but was not given one.

13 Work started on 10 December 2013 and, on 14 December 2013, Ms A Wong handed Mr Farah the deposit of $9,000 in cash. Mr Farah signed a handwritten receipt for that amount which said:

Received $9000 cash from Janette to Billy

It appears that the receipt was written out by Ms A Wong.

14 Shortly after work commenced, Ms Cheong asked Mr Farah to do some additional work. A dispute arose concerning the price for that additional work. The details of the additional work are not important. Ms Cheong contacted Mr Bell about the dispute and in response, on 17 December 2013, Mr Bell emailed Ms Cheong a revised scope of works that had been prepared by Mr Elcham, which described the work to be done and the price for various components of that work. The scope of works was headed "statewide form" and was partially typed and partially handwritten. It was signed by Mr Elcham on behalf of "statewideform P/L" and made provision for "Janet Cheung" to sign as "owner".

15 Ms A Wong replied to that email on the same day. The reply relevantly said:

Thank you for your revised scope of work unfortunately there is a significant variance from our original agreement between Janette and Billy and Robert.

At this stage, we do not agree the proposed scope of work and it's [sic] detail as we'll [sic] as the quotation. As there are proposed exclusions which should have been included in your price as per original agreement. Therefore in order to treat this matter as fairly as possible with minimal impact to the project in every aspects, it is imperative to resolve this matter tomorrow and will consider the continuation of work by Stateform based on the outcomes of that discussion. As such, we do not suggest any work on site. Kindly make necessary arrangements accordingly.

16 It appears that, the following day, two persons from Statewide Form attended the property to collect their tools. Later that day, Ms A Wong sent Mr Elcham an email, which said in part:

While we understand John will send a detail list of costs incurred up to date for comment and approval. We will try to resolve this as soon as we could.

Meanwhile, it seems the chance of having Statewide Form to continue the job is remote as he has provided 2 personnel to pack and remove the gears from site.

The site is currently left incomplete and dirty. It is causing a great inconvenience and possibly with structural and water penetration issues, etc.

We will immediately engage another contractor, at least to make good and bring the site in a [sic] orderly and safe condition without further notice.

17 Mr Elcham responded to that email on 19 December saying the following:

I refer to our recent telephone communication and your emails. We hereby accept your repudiation of our agreement. Kindly find enclosed attachment of our claim for the abovementioned project.

Attached to the email was an invoice from Statewide Form claiming the sum of $53,232.50. The invoice was addressed to "Nefiko Pty Ltd". Mr Elcham says that, when he was preparing the invoice, he asked Mr Farah to whom to address it and Mr Farah told him to address it to Nefiko and gave him the business card that Ms Cheong had given him. Mr Elcham was not cross-examined on this evidence. The invoice is stated to be a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act).

18 For reasons which are unclear, Mr Elcham sent further emails to Ms Cheong at Nefiko on 31 December 2013 (one at 9.00 am and another at 9.05 am) stating "We hereby accept your repudiation of our agreement". The emails also attached an invoice dated 31 December 2013 in the same terms as the invoice dated 19 December 2013. Again, the invoice was expressed to be a payment claim in accordance with the Act.

19 Nefiko did not serve a payment schedule in response to the payment claim within the time limit specified in s 14(4) of the Act.

20 On 6 February 2014, Avondale Lawyers, acting for Statewide Form, sent an email to Nefiko demanding payment of the $53,232.50, failing which the email said "we will be commencing an adjudication application for this matter".

21 After receiving that email, Ms V Wong rang the solicitor acting for Statewide Form. There is a dispute concerning what was said. However, it is apparent that Ms V Wong denied that Nefiko was the contracting party and said that the email needed to be sent to Ms Cheong. On the same day, Avondale Lawyers sent a letter to the same effect as the previous email addressed to "Janette Cheung [sic] Nefiko Pty Ltd".

22 On 11 February 2014, Statewide Form served a notice under s 17(2) of the Act notifying Nefiko of its intention to apply for adjudication of its payment claim. Again, Nefiko did not serve a payment schedule within 5 business days after receiving that notice.

23 On 19 February 2014, Statewide Form lodged an adjudication application with Adjudicate Today. That application was supported by an affidavit sworn by Mr Farah. Since Nefiko had not served a payment schedule, it was prevented by s 20(2A) of the Act from lodging an adjudication response.

24 On 6 March 2014, the solicitors acting for Nefiko and Ms Cheong wrote to the Adjudicator. After pointing out that they acted for Nefiko, the letter said:

We also act for Janette Cheung [sic], who admits to having a contract with Statewide Form Pty Limited ("Statewide Form"), but not in the terms claimed by the Applicant.

The letter went on to submit that the contract was between Statewide Form and Ms Cheong, not between Statewide Form and Nefiko. It made other submissions which are not relevant to the current dispute.

25 The Adjudicator made his determination on 17 March 2014. He held that $25,732.50 including GST was payable by Nefiko, together with the Adjudicator's fees. He referred to the submission made by the solicitors for Nefiko and Ms Cheong concerning who the correct contracting party was. However, he observed that Nefiko had not provided a payment schedule pursuant to s 20(2A) of the Act and was not therefore entitled to provide an adjudication response. Nonetheless, he went on to consider the question whether the contract was with Nefiko or Ms Cheong and concluded on the evidence before him that it was with Nefiko.

26 Nefiko commenced these proceedings on 28 March 2014. Initially, it sought an interlocutory injunction restraining Statewide Form from acting on or seeking to enforce the Adjudicator's determination on the ground that the Adjudicator had failed to comply with the rules of natural justice. That application was dismissed: see Nefiko Pty Ltd v Statewide Form Pty Ltd [2014] NSWSC 442.

The issues

27 Nefiko submits that the Adjudicator's determination should be set aside for 3 reasons. First, it submits that the Adjudicator had no jurisdiction to determine the issue of who the parties to the contract were and fell into error in doing so. Second, it submits that there was no contract between Nefiko and Statewide Form. Rather, the contract was between Ms Cheong and Mr Farah. Third, it appears that Nefiko still relies on its contention that the Adjudicator denied it natural justice, although that contention is not pleaded in its Amended Technology and Construction List Statement and was not the subject of specific submissions by Mr Glissan QC, who appeared for Nefiko.

Submissions concerning jurisdiction

28 It is convenient to take the first 2 submissions together.

29 Section 7 of the Act relevantly provides:

Application of Act

(1) Subject to this section, this Act applies to any construction contract, whether written or oral, or partly written and partly oral, and so applies even if the contract is expressed to be governed by the law of a jurisdiction other than New South Wales.

(2) This Act does not apply to:

(a) ..., or

(b) a construction contract for the carrying out of residential building work (within the meaning of the Home Building Act 1989) on such part of any premises as the party for whom the work is carried out resides in or proposes to reside in, or

...

30 The parties accept that the existence of a construction contract that falls within s 7(2)(b) is a "jurisdictional fact" - that is, a fact on which the jurisdiction of the Adjudicator to make a determination depended. The primary submission of Mr Glissan was that that meant that the Adjudicator could not determine that fact and that the Adjudicator fell into error by doing so. For that proposition, he relied on the decision of the Court of Appeal in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 78 NSWLR 393. However, Mr Glissan's submission confuses the determination of the relevant question and a decision in relation to it. The distinction was explained in the following terms by Dixon J in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 at 618 in relation to the jurisdiction of a statutory board established to settle disputes in the "coal mining industry":

[I]t is plain that the ... Regulations do not mean to give to the ... Board any power whatever to determine the ambit of the expression "coal mining industry'' or the extent of their own jurisdiction as governed by that expression.

...

I do not mean to say that the Board may not, for the purpose of determining its own action, "decide'' in the sense of forming an opinion upon the meaning and application of the words "coal mining industry''. It must make up its mind whether this or that particular function on the borders of the coal mining industry does or does not fall within the conception. But it is not able to make a decision binding on the parties within the meaning of reg 9, because that is the very matter which governs the extent of the operation of reg 9, among other regulations.

31 The same point was made by Brennan J in Re Adams and Tax Agents' Board (1976) 12 ALR 239 at 242:

An administrative body cannot therefore lawfully exercise authority merely because it is of the opinion that it has the authority. Its opinion is not the charter of its powers and discretions. It derives its powers and discretions from and in accordance with the law. It is the court's judgment and not the administrative body's opinion which defines the extent of ... its statutory authority.

...

An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect.

32 These principles have been applied to the determination of the question whether there is a construction contract for the purpose of s 7(1) of the Act: see Fifty Property Investments Pty Ltd v O'Mara [2006] NSWSC 428 at [18]ff per Brereton J.

33 It follows that Mr Glissan's primary contention must be rejected.

34 In determining whether a primary decision-maker (in this case, the Adjudicator) has made an error concerning a jurisdictional fact, it is for the court to determine the relevant fact on the material before it and not on the evidence before the primary decision-maker: see Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 at [88] and [105] per Spigelman CJ; IWD No 2 Pty Ltd v Level Orange Pty Ltd [2012] NSWSC 1439 at [9] per Stevenson J; Fifty Property Investments at [21]. The weight that the court gives to the findings of the primary decision-maker varies with the circumstances. As Brereton J explained in Fifty Property Investments at [22]:

The extent to which the reviewing court gives weight to the view of the facts taken by the decision maker in determining whether a jurisdictional fact exists varies with the circumstances [R v Blakeley, 92-93; Sankey v Whitlam [1977] 1 NSWLR 333 at 347; R v Ludeke; R v Williams, Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation (1982) 153 CLR 402 at 411], relevant factors including the field in which the tribunal operates, the criteria for appointment of its members, the materials upon which it acts in the exercise of its functions, and the extent to which its decisions are supported by disclosed processes of reasoning [Minister of Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (Gummow J)]. The principle that weight may be given to the tribunal's view of the relevant jurisdictional fact applies more where the tribunal's expertise especially equips it to provide an answer, and less where the jurisdictional fact is an expression which is a matter of ordinary usage [R v Williams, Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation Queensland v Wyvill].

35 In the present case, the fact on which the Adjudicator's jurisdiction was said to depend was who the parties to the contract were. The Court is in a better position than the Adjudicator to determine that fact.

36 Mr Glissan's alternative submission was that the Court ought to find that Ms Cheong and not Nefiko was a party to the contract. In the Amended Technology and Construction List Statement, it is also pleaded that Mr Farah rather than Statewide Form was a party to the contract, although Mr Glissan did not make oral submissions in support of that contention.

37 In my opinion, it is appropriate to take into account subsequent conduct in determining who the parties to the contract were. I say that for 2 reasons.

38 First, although at an appellate level it might still be arguable that the court should not take into account subsequent events in determining the existence of a contract as well as its interpretation, I do not think that that argument is available at first instance. There are strong and persuasive statements at the appellate level that a court can take into account subsequent events for the purposes of determining whether a contract has come into existence and the parties to it: see, for example, Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 at [25] per Heydon JA, citing Howard Smith & Co Ltd v Varawa [1907] HCA 38; (1907) 5 CLR 68 at 77; Barrier Wharfs Ltd v W Scott Fell & Co Ltd [1908] HCA 88; (1908) 5 CLR 647 at 668, 669 and 672; B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 at 9149 and 9154-6; Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251 at 9255. See also Tomko v Palasty [2007] NSWCA 258 at [68] per Einstein J (Mason P agreeing); Lederberger v Mediterranean Olives Financial Pty Ltd [2012] VSCA 262 at [31]. In my opinion, those statements should be followed.

39 Secondly, the question whether Nefiko was a party to the contract depends largely on the question whether particular events occurred on or about 2 December 2013 - in particular, whether Ms Cheong spoke the words attributed to her by Mr Farah. In my opinion, it is appropriate for the Court to take into account subsequent events in determining the likelihood of a particular event occurring at a prior time.

40 Mr Glissan submits that a number of matters support Nefiko's contention that Ms Cheong was the contracting party. Of greatest significance is the fact that Ms Cheong was the owner of the property on which the work was to be carried out, and the likelihood is that Mr Farah knew that. Secondly, he relies on the fact that the deposit was paid in cash and the receipt that was given by Mr Farah for that amount acknowledged that the sum had been paid by Ms Cheong. Third, he pointed to the scope of works prepared by Mr Elcham, which contemplated that it would be accepted by Ms Cheong as the contracting party. Fourth, he relied on Ms A Wong's email dated 17 December 2013, which referred to "our original agreement between Janette and Billy and Robert". Fifth, he relied on the fact that Mr Farah, in his affidavit evidence, suggests that Ms Cheong spoke as if she was the contracting party. So, for example, she is said to have said words to the effect of "I want some further work done". Sixth, Mr Glissan relied on the conversation between Ms V Wong and the solicitor for Statewide Form on 6 February 2014 in which Ms V Wong asserted that the invoice should be addressed to Ms Cheong. In the alternative, Mr Glissan submitted that it was open to the Court to find that Ms Cheong was the contracting party but that she had nominated Nefiko as the entity that would pay Statewide Form's accounts.

41 Mr Macauley, who appeared for Statewide Form, relied on a number of matters in support of the submission that Nefiko was the contracting party. First, Ms Cheong gave Mr Farah her Nefiko business card. Second, Ms A Wong, who was a director of Nefiko, gave Mr Farah instructions. She did so from a Nefiko email address. When she gave instructions, she often used the first person plural pronoun, "we", rather than referring to Ms Cheong, which suggested that she was speaking on behalf of Nefiko. Third, Statewide Form addressed its account to Nefiko, and the first time anyone suggested that Nefiko was not the contracting party was when Ms V Wong rang Statewide Form's solicitors in February 2014 in response to Statewide Form's letter of demand.

42 In my opinion, much of this evidence is equivocal. The arrangement was obviously a very informal one. English was not the first language of any of the principal witnesses. In those circumstances, little can be inferred from the precise way in which the parties expressed themselves on particular occasions. Ms A Wong lived at the house. She is Ms Cheong's sister. She gave evidence that the only email account she had was a Nefiko email account. Consequently, little can be inferred from the fact that she used that email account or that she used the expression "we". Similarly, little can be inferred from the fact that Ms Cheong said that she (rather than Nefiko) wanted particular work done, or that Mr Farah acknowledged receipt of money from Ms Cheong. The receipt was prepared by Ms A Wong and, at an informal level, it was natural to say that Mr Farah acknowledged receipt of money from Ms Cheong. Although it is true that Ms A Wong paid the deposit in cash, I do not think that demonstrates that the source of the deposit was Ms Cheong rather than Nefiko. Nothing can be inferred from the scope of works prepared by Mr Elcham, since he was not present when the agreement was reached.

43 The critical question is whether Ms Cheong told Mr Farah to bill Nefiko for the work that he was to do or whether she said that she should be billed personally. If the objective intention of the parties was that Nefiko would pay for the work, then it seems to me that the objective intention was that it was a party to the contract, not Ms Cheong.

44 The fact that Nefiko had no interest in the property suggests that it was not the contracting party. But that is not decisive in the circumstances of this case. The shares in Nefiko were wholly owned by Ms Cheong and Ms A Wong. Although the property was owned by Ms Cheong, she and Ms A Wong are sisters and both live at the property. It would not be surprising that they did not always distinguish between Nefiko and their own interests and there could well be reasons why they would choose to have Statewide Form's accounts paid by Nefiko rather than Ms Cheong personally.

45 In my opinion, of greater significance is the fact that Mr Farah addressed the original account to Nefiko. Mr Farah did not come across as a sophisticated person. It was not put to him that, at the time he arranged for the account to be sent to Nefiko, he understood the significance of Nefiko being the contracting party rather than Ms Cheong - in particular, that the Act would not apply in the latter case - and, in my opinion, the likelihood is that he did not. On the other hand, it was natural for a person in his position to ask what work he was required to do and who was going to pay for it. Ms Cheong denies that she gave Mr Farah her Nefiko business card. However, I do not accept that evidence. It is clear that Mr Farah had that business card; and, in my opinion, the likelihood is that she gave him her business card so that he would know to whom to send his accounts. It is relevant that Ms Cheong denied that she gave Mr Farah her business card. That denial suggests that she could offer no explanation for giving it to Mr Farah other than the explanation given by Mr Farah. More significantly, when the time came to send an account for the work that had been done, Mr Farah asked Mr Elcham to address the account to Nefiko. The likelihood is that he would only have done so if that were what Ms Cheong had asked him to do. He had no other reason for doing so, and the person or entity that was going to pay his bills is something that would have been of importance to him. As I have said, if what the parties intended was that Nefiko would be responsible for paying the work, then what they must have intended was that Nefiko was the contracting party.

46 It is true that Ms V Wong disputed that Nefiko was the contracting party on 6 February 2014. However, no explanation was given for why she, or one of her sisters, did not raise that issue at the time the invoice was sent. One possible explanation for why the issue was not raised before 6 February 2014 was that Ms Cheong by that stage had obtained legal advice on the demand and understood the significance of who the contracting party was for the application of the Act. In view of that possibility, and the delay in raising the issue, I do not think that substantial weight can be attached to Ms V Wong's telephone call to the solicitor for Statewide Form.

47 Mr Glissan's alternative submission appears to be that s 7(2)(b) of the Act draws a distinction between the parties to the contract and the "party for whom the work is carried out". The submission appears to be that the work was carried out for Ms Cheong because it was carried out on her house even if the agreement was that Nefiko would pay for it.

48 I do not accept that submission. In my opinion, the reference in s 7(2)(b) to the "party for whom the work is carried out" is intended to be a reference to the party to the contract who meets the relevant description. In other words the words, "party for whom the work is carried out" is the description used to identify the contracting party who is not the party who carries out the work. On the conclusion I have reached, that was Nefiko, since that was the entity that the parties intended would be responsible for paying for the work.

49 It is not entirely clear that the question of who contracted to do the work is a jurisdictional fact. There was unquestionably a construction contract within the meaning of the Act; and it is not clear why, in that case, the Adjudicator did not have jurisdiction to determine who the parties to that contract were, except to the extent that determination of that question raised the jurisdictional fact raised by s 7(2)(b). However, even if it is a jurisdictional fact, in my opinion, the contracting party was Statewide Form. Mr Glissan did not advance any argument for why it was Mr Farah personally. Even if Mr Farah did not refer to Statewide Form at the time he agreed to do the work, it is clear from everything that happened subsequently that he was contracting, if not for a disclosed principal, then an undisclosed one - namely, Statewide Form. Nefiko admitted that Statewide Form was the contracting party during the course of the adjudication proceedings. In my opinion, that is compelling evidence that Statewide Form was the contracting party.

Natural justice

50 The argument that the Adjudicator denied Nefiko natural justice by refusing to consider the submission its lawyers made on 6 March 2014 was raised at the interlocutory hearing. Again, Mr Glissan did not make any submissions for why the conclusions reached in relation to that application were wrong. Section 22(2) of the Act sets out the only matters the Adjudicator could have regard to in making his determination. The letter dated 6 March 2014 was not one of them. Despite that, the Adjudicator did consider the issue whether Nefiko or Ms Cheong was a party to the contract. Accordingly, there was no denial of natural justice.

Orders

51 The orders of the Court are that the proceedings be dismissed with costs.

**********

Decision last updated: 27 June 2014