Anthony dwyer serene scene landscapes landscaping richlands dispute with valeco homes pty ltd doc2

RICS Dispute Resolution Service
RICS Dispute Resolution Service www.ricsdrs.com.au Page 1 of 12
Adjudicator’s Decision
Pursuant to the Building and Construction Industry Payments Act 2004
Adjudication Application Number 1064504_1026
Authorised Nominating Authority RICS Dispute Resolution Service.
Adjudicator Robert Gemmell (J1246499)
Claimant
Serene Scene Landscapes
(ABN 52 149 873 089)
Respondent
Valeco Homes Pty Ltd
(ABN 13 104 030 462)
Project Lot 182 Gordon Crescent, Mango Hill, Queensland 4509
Adjudicated Amount $nil
Due Date For Payment n/a
Rate of Interest n/a
Adjudication Fees Apportionment
The Claimant: 100%
The Respondent: 0%
Date of Decision Friday 13
th
September 2013
Payment Claim
Claimed Amount: $1,532.00 including GST
Dated: 31
st
July 2013
Notice of Adjudication Intent – 21(2) Notice n/a
Payment Schedule
Scheduled Amount: $0.00
Dated: 14
th
August 2013
Adjudication Application Dated: 26th
August 2013
Adjudicator Acceptance Dated: 28
th
August 2013
Adjudication Response Dated: 3rd
September 2013

Table of Contents:
Background...............................................................................................................................3
Appointment..............................................................................................................................3
Material.....................................................................................................................................4
Jurisdictional Issues..................................................................................................................4
Payment Claim .........................................................................................................................4
Payment Schedule....................................................................................................................5
Adjudication Application............................................................................................................6
Adjudication Response .............................................................................................................6
Reason(s) for the Decision .......................................................................................................7
Contract ....................................................................................................................................7
The Dispute ..............................................................................................................................8
Valuation of the construction work ............................................................................................8
Adjudicator‟s and ANA‟s fees and expenses ..........................................................................11

The Decision
1. I, Robert Gemmell, Registered Adjudicator Number J1246499, as the Adjudicator pursuant
to the Building and Construction Industry Payments Act 2004 (“BCIPA”), for the reasons
set out in this decision, decide that:
a. The amount of the progress payment to be paid by the Respondent to the
Claimant (“the adjudicated amount”) is $nil.
b. The Adjudicator‟s and ANA‟s fees and expenses are to be apportioned as
follows:
i. The Claimant 100%
ii. The Respondent 0%
Background
2. The Application arises from an unpaid Payment Claim made by the Claimant to the
Respondent in respect of construction work carried out under a contract between the
Parties to carry out landscaping work at Lot 182 Gordon Crescent, Mango Hill,
Queensland 4509 (the Works).
Appointment
3. The Adjudication Application was referred to me as Adjudicator on 2nd
September 20131
by the RICS Dispute Resolution Service, an Authorised Nominating Authority pursuant to
s.21(6) of BCIPA.
4. The RICS Dispute Resolution Service served a notice of my acceptance of the
Adjudication Application on the Parties on 28th
August 2013, pursuant to s.23(1) of BCIPA.
1
The date I received the Adjudication Application from the RICS Dispute Resolution Service

Material
5. The following material was provided to me:
 The Adjudication Application on 2nd
September 2013.
 The Adjudication Response on 4th
September 2013.
Jurisdictional Issues
6. An online search confirms that the Claimant holds the relevant QBSA builders license and
is the person who, under the contract concerned, is or may be entitled to receive a
progress payment and accordingly is entitled to make a Payment Claim under BCIPA.
7. The Respondent is the person who, under the construction contract concerned, is or may
be liable to make the payment.
8. The Claimant and the Respondent entered into a contract in January 2013 which was after
the commencement of BCIPA and is therefore pursuant to s.3(1) of BCIPA.
9. The contract is for „construction work‟ as defined under s.10 of BCIPA.
10. The construction work was in Queensland pursuant to s.3(4) of BCIPA.
11. I am therefore satisfied that the Adjudication Application falls within the jurisdiction of
BCIPA.
Payment Claim
12. It is common ground that the Claimant served the Respondent with the Payment Claim on
31st
July 2013.
13. In the Payment Claim, the Claimant states:

“The construction work or related goods and services in respect of which this
Payment Claim is made and the method of calculation of the total amount of the claim
are set out in the Attachment(s) to this Payment Claim.”
14. Notwithstanding the statement in the Payment Claim as set out above, the Claimant did
not provide the attachments to the Payment Claim. However, the amount of the Payment
Claim is part of the contract amount of $6,963.00 including GST and that work is referred
to in the Contract Details section of the Payment Claim. On balance, in my view, the
Payment Claim therefore identifies the „construction work‟ pursuant to s.7(2)(a) of BCIPA.
15. The Payment Claim states the amount of the progress payment that the Claimant claims
to be payable pursuant to s.17(2)(b) of BCIPA.
16. I am therefore satisfied that the Payment Claim complies with the requirements of s.17 of
BCIPA.
Payment Schedule
17. It is common ground that the Respondent served the Claimant with a Payment Schedule
dated 14th
August 2013 within the period allowed pursuant to s.18(4)(b) of BCIPA from the
service of the Payment Claim.
18. The Payment Schedule identifies the Payment Claim to which it relates, pursuant to
s.18(2)(a) of BCIPA.
19. The Payment Schedule states the amount of payment the Respondent proposes to pay
(the scheduled amount) in the amount of $0.00, pursuant to section 18(2)(b) of BCIPA.
20. The Payment Schedule states the Respondent‟s reasons for withholding payment,
pursuant to s.18(3) of BCIPA.
21. I am therefore satisfied that the Respondent served a valid Payment Schedule that
complies with the requirements of s. 18 of BCIPA.

Adjudication Application
22. The Adjudication Application is in writing and is therefore pursuant to s.21(3)(a) of BCIPA.
23. The Adjudication Application was made to the RICS Dispute Resolution Service and is
therefore pursuant to s.21(3)(b) of BCIPA.
24. The Adjudication Application is dated 26th
August 2013 and was made on 28th
August
2013. It is therefore within the time allowed pursuant to s.21(3)(c)(i) of BCIPA for an
Application under s.21(1)(a)(i) of BCIPA.
25. The Claimant says that it served a copy of the Adjudication Application on the Respondent
on 28th
August 2013. In the Response, the Respondent acknowledges service of a copy of
the Adjudication Application and does not dispute the date of service.
26. Accordingly, I find a copy of the Adjudication Application was served on the Respondent
pursuant to s.21(5) of BCIPA.
27. I am therefore satisfied that the Adjudication Application complies with the requirements of
s.21 of BCIPA.
Adjudication Response
28. The Respondent was served with a copy of the Adjudication Application on 28th
August
2013.
29. The Respondent submitted its Response on 4th
September 2013 compliant with s.24(2) of
BCIPA and within the time allowed pursuant to s.24(1)(a) of BCIPA.
30. I am therefore satisfied that the Response complies with the requirements of s. 24 of
BCIPA.

Reason(s) for the Decision
31. In making this Decision I have had regard to the following matters only, pursuant to s.26(2)
of BCIPA:
a. the provisions of BCIPA and to the extent they are relevant, the provisions of the
Queensland Building Services Authority Act 1991(“QBSA Act”), part 4A;
b. the provisions of the construction contract from which the Application arose;
c. the Payment Claim to which the Application relates, together with all
submissions, including relevant documentation, that has been properly made by
the Claimant in support of its claim;
d. the Payment Schedule, if any, to which the Application relates, together with all
submissions, including relevant documentation, that has been properly made by
the Respondent in support of the Schedule;
e. the result of any inspection carried out by myself of any matter to which the
claim relates.
Contract
32. The contract between the Parties is a written contract: Short Form Subcontract Agreement
dated 14th
January 2013.
33. The contract is for landscaping and the construction of retaining walls in the sum of
$6,963.00 including GST.
34. The Claimant provided a copy of the contract in Appendix 3 of the Adjudication
Application.

The Dispute
35. The Claimant contends that it is entitled to the full amount claimed of $1,532.00 including
GST.
36. The Respondent says that the Claimant is entitled to $nil because the works carried out
were defective.
Valuation of the construction work
Payment Claim: Missing Attachments
37. The Claimant served the Respondent with the Payment Claim on 31st
July 2013.
38. The Payment Claim relied on by the Claimant is in Appendix 1 of the Adjudication
Application. The final paragraph of the Payment Claim states:
“The construction work or related goods and services in respect of which this
Payment Claim is made and the method of calculation of the total amount of the claim
are set out in the Attachment(s) to this Payment Claim.”
39. I have reviewed each and every page in the Parties‟ submissions and I am unable to
identify the attachments, or any other document that appears to be the attachments to the
Payment Claim.
Payment Claim: Evidence to Support Amount Claimed
40. Even though the work for which the Claimant claims payment is referred to in the Contract
Details section of the Payment Claim, there is no supporting evidence enclosed with the
Payment Claim to support the amount claimed.

Payment Schedule: Reasons for Withholding Payment
41. With regard to the Payment Schedule, the Claimant contends that there are no valid
reasons for withholding payment. I have reviewed the Payment Schedule, and the reasons
are:
“We note that on 24 May 2013, following numerous opportunities offered to Serene
Scene to rectify unsatisfactory works performed on this project, Valeco Homes Pty
Ltd paid to Serene Scene an amount of $3,113. This amount was net of the costs
incurred by Valeco Homes to rectify unsatisfactory works. This has been clearly
communicated to your company in past communications, specifically that dated 16
May 2013, which we attach for your reference.”
42. There is insufficient evidence to persuade me that the reasons in the Payment Schedule
are invalid. The Claimant has not provided persuasive evidence to support its contentions
in this regard.
43. However, for the reasons given below, nothing turns on whether I consider the reasons for
withholding in the Payment Schedule are, or are not, valid.
Anthony Dwyer’s Sworn Statement
44. In the sworn statement of Anthony Dwyer dated 26th
August 2013, Mr Dwyer provides
photographs which identify turf that appears to be „patchy‟, defective, and unfinished in
places. Mr Dwyer says in his Statement that the alleged defects were in fact requests for
the following variations:
a. Lay turf to the side of new garden edging;
b. Lay new turf to edge of new concrete driveway;
c. Re-lay turf that had died; and
d. Re-lay turf around pit.

45. However, there is no evidence of those instructions being issued or whether the alleged
instructions were in fact variations. Mr Dwyer says in his Statement that “None of the
above items were included in the Contract nor were they defects for which I was
responsible”. However, following my review of the contract drawings submitted in
Appendix 3 of the Adjudication Application, I note that the drawings show that turf is to be
laid to the edge of the driveway, to the edge of the garden edging, and around a field
gulley in the back garden.
46. Further, on the basis of the evidence submitted, it is not possible for me, with any real
degree of certainty, to determine the condition of the Works at the time the Works were
finally handed over to the Respondent.
Claimant’s Letter dated 5th
June 2013
47. In its letter dated 5th
June 2013, the Claimant states “...your company [the Respondent]
became liable to pay the claimed amount by the due date for payment due to the non
provision of a valid payment schedule.” This statement is of no significance in this
adjudication. The absence of a Payment Schedule permits the Claimant to recover the
unpaid portion from the Respondent as a debt owing to the Claimant through a court of
competent jurisdiction.
48. Under BCIPA, the Claimant may make an Adjudication Application, as it has done.
However, the Claimant is unable to simply recover the unpaid amount as a debt due as
the Claimant‟s action is through adjudication and not the courts. In adjudication, even if a
Payment Schedule has not been issued, or if the reasons in the Payment Schedule are
invalid as the Claimant contends, the Claimant still has the burden of proving its
entitlement, and quantum of entitlement on the balance of probabilities. As I have said
above, the Claimant has not done so.
Claimant to Demonstrate Entitlement to Amount Claimed
49. As I have said above, if the reasons in the Payment Schedule are invalid, the Claimant is
still obliged to demonstrate it has an entitlement to be paid and to demonstrate the

quantum of entitlement for the amount it claims. Further, in the absence of the supporting
evidence provided by the Claimant, I am unable to value the actual work completed by the
Claimant.
50. In the Adjudication Application, the Claimant primarily argues, and repeats its assertions,
that:
a. The Respondent did not submit a valid Payment Schedule,
b. The Respondent did not send a letter instructing the Claimant to rectify defects,
and
c. The Respondent did not identify valid reasons for withholding payment.
51. However, I do not need to consider the Claimant‟s assertions set about above because
the Claimant has not attempted to demonstrate that it carried out the work for which it
claims payment. I would only need to consider the Claimant‟s assertions if the Claimant
had made out its case for payment.
Summary/Conclusion
52. For the reasons set out above, I find that the Claimant is not entitled to the amount
claimed or to any other amount.
Adjudicator’s and ANA’s fees and expenses
53. The Claimant has not been successful in its Payment Claim.
54. Pursuant to s.34(3)(b) and s.35(3), I decide that the Parties shall be liable for the
Adjudicator‟s and ANA‟s fees and expenses in the following proportions:
Claimant 100%
Respondent 0%

Signed: ……………………………………………………
Robert Gemmell – Registered Adjudicator No.J1246499
Dated: Friday 13th
September 2013

Anthony dwyer serene scene landscapes landscaping richlands dispute with valeco homes pty ltd doc2

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