Comparación de ScNaCl y Al2SO4 [25mg/l]
TOTAL 2 000 000 Fuente. Esta investigación, 2019
It is critical in this section to look at the amended changes that were made to the Act. In the final Report, Evans stated:
It does not appear to be practical to amend s 6 of the Act to additionally define when a dispute arises where the parties initially choose to pursue a resolution of the payment dispute through negotiation as part of the contract’s dispute resolution clause in that it has the potential to further delay resolution and is, therefore, inconsistent with the object of the Act to resolve the payment dispute in a timely manner.377
The Attorney General in the Second Reading Speech asserted otherwise, by stating that the bill would include:
clarifying when a payment dispute commences for the purposes of section 6(1) of the Construction Contracts Act, to make it clear to the parties when an application for adjudication of the dispute should be made.378
The Act, pursuant to s 6 of the Act,379 was amended to reflect the following changes and now reads:
6. Payment dispute
375 Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2016] WASCA 130, 69 [205].
376 Ibid [206].
377 Philip Evans, ‘Report on the Operation and Effectiveness of the Construction Contracts Act 2004 (WA)’, (Parliament of Western Australia, 2015), 23.
378 Western Australia, Second Reading - Construction Contracts Amendment Bill 2016, Tues 08 November 2016, 2 (Michael Mischin).
379 Construction Contracts Act 2004 (WA), s 6.
95 (1) For the purposes of this Act, a payment dispute arises if —
(aa) a payment claim is rejected or wholly or partly disputed; or
(a) by the time when the amount claimed in a payment claim is due to be paid under the contract, the amount has not been paid in full; or
(b) by the time when any money retained by a party under the contract is due to be paid under the contract, the money has not been paid; or (c) by the time when any security held by a party under the contract is due
to be returned under the contract, the security has not been returned.
(2) Despite subsection (1), a payment dispute does not arise under subsection (1)(aa) or (a) to the extent to which the payment claim includes matters that were the subject of an application for adjudication that has been dismissed or determined under section 31(2).380
(3) If a payment dispute arises under both subsection (1)(aa) and (a) in relation to a payment claim then, for the purposes of this Act, the dispute arises on the earlier of the 2 occurrences.
The Explanatory Memorandum Construction Contracts Amendment Bill 2016, make clear that:
In the past there has been some uncertainty on the proper construction to be given to the current section 6(1) of the Act and whether a party has to wait until when a payment claim due had not been paid in full, even if a notice had been issued under the contract disputing the whole or part of the payment claim, before applying for adjudication of the dispute.
This clause inserts a new section 6(3) which clarifies that a payment dispute arises on the earliest of either occurrence.381
380 Western Australia, Explanatory Memorandum Construction Contracts Amendment Bill 2016. The memorandum, explained that [at 7-8]:
The new section 6(2) makes it clear that where a payment claim includes matters covered in a previous payment claim, and the payment claim is disputed, then for the purposes of the Act a payment dispute arises, but not if the matters in the previous payment claim have been the subject of an application for adjudication that has been dismissed or determined.
The exclusion inserted by the new section 6(2) prevents the potential for ‘adjudicator shopping’ that could arise from allowing the adjudication of disputes over payment claims that include matters previously disputed and adjudicated upon.
The new section 6(2) will operate in conjunction with the requirement in section 31(2)(a)(iii) that the adjudicator must dismiss an application for adjudication if an arbitrator, court, other person or body has already made an order, judgement or other finding about the dispute that is the subject of the application.
381 Western Australia, Explanatory Memorandum Construction Contracts Amendment Bill 2016, 6.
96 The legislators have correctly interpreted the position of the WASCA in the decision in Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation.382 The amendment to s 6 of the Act,383 clearly gives proper construction in the clarification of what constitutes a payment dispute.
The WASCA in Samsung C&T Corporation v Duro Felguera Australia Pty Ltd,384 would further look into this matter. Pivotal to this decision lies in accordance with s 6 and the use of the word ‘obligation’.385 His Honour Justice Buss P and his Honour Justice Murphy JA, qualified in the terms of s 6 that a payment dispute arises if (their emphasis is in Bold/Italic):
(a) by the time when a 'payment claim' (of an amount in relation to the performance or non-performance of the contractor's 'obligations') is due to be paid under the construction contract, the amount has not been paid in full, or the claim has been rejected or wholly or partly disputed;
(b) by the time when any money retained by a principal (or other party) under the construction contract (for the performance of the contractor's 'obligations') is due to be paid under the construction contract, the money has not been paid; or
(c) by the time when any security held by a principal (or other party) under the construction contract (for the performance of the contractor's obligations) is due to be returned under the construction contract, the security has not been returned.386
382 [2015] WASC 237.
383 Construction Contracts Act 2004 (WA), s 6.
384 [2018] WASCA 27.
385 Construction Contracts Act 2004 (WA), s 3, Obligation; in relation to a contractor, means those of the obligations described in the definition of construction contract that the contractor has under the construction contract.
386 Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2018] WASCA 27, 52 [159].
97
PART 2
Part 2 – The Jurisdiction of the Courts and the State Administrative Tribunal and the Construction Contracts Act 2004 (WA).
The aim of part two of this research is to look at the jurisdiction of the Courts in enforcing an adjudicator’s determination as an order of the Court, and the limited right of review of an adjudicator’s determination by the Courts of Western Australia and the State Administrative Tribunal.
Part two has three chapters, they are:
• Chapter 4: Section 43 – Determinations may be enforced as orders of court
• Chapter 5: Section 46 (Review, limited right of) of the Construction Contracts Act 2004 (WA) and the jurisdiction of the State Administrative Tribunal of Western Australia.
• Chapter 6: Jurisdictional error, judicial review of the Construction Contracts Act 2004 (WA) and the jurisdiction of the Supreme Court of Western Australia.
98 Chapter 4