In years gone by, poking at an adjudicator's decision was a
popular past-time for the construction lawyer. That is, when an
adjudicator made a determination that the client didn't like
(often the paying party), you would be instructed to challenge the
validity of the determination in court.
These days, however, adjudicator poking has gone out of fashion
due to the courts tendency to enforce the determination (and
rightly so). Once in a while, however, some brave soul will have a
go in order to avoid the intended consequence of that determination
In the recent case of Eastland Truss & Timber Pty Ltd v
Matthew John Byrnes (trading as Qualibuilt Constructions), the
Supreme Court considered whether a poke at the adjudicator's
determination was valid. You can probably guess what happened
Eastland (as contractor) entered into a construction contract
with Qualibuilt (as subcontractor) for the supply and installation
of a number of timber frames, timber trusses and timber floor
Although there had been previous payment claims and payment
schedules served under the Security of Payments Act, the relevant
payment claim was Qualibuilt's April 2014 claim for $59,919.94.
In response to that claim, Eastland submitted its payment schedule
stating that the scheduled amount for payment was $0, zilch,
Eastland's payment schedule stated that the scheduled amount
was zero because Qualibuilt had not provided a number of documents
(e.g. insurance certificates and the like) and Qualibuilt was
indebted to Eastland for back charges to the tune of $93,345.20.
The parties headed to adjudication.
The adjudicator concluded that Qualibuilt's payment claim
complied with the requirements of the Act and there did not appear
to be a contractual basis for Eastland to recover alleged back
charges. Not happy with this determination, Eastland took a brave
pill or two and headed to court.
Eastland claimed the adjudicator had merely adopted
Qualibuilt's claim, had failed to comply with his obligation to
undertake a proper valuation of the work performed and had failed
to properly value the cost of rectification of defective works.
Qualibuilt said the adjudicator had reviewed the material
available to him and analysed each document to the best of his
ability in making his determination that Eastland should pay
Qualibuilt the job lot.
The court concluded that the adjudicator had regard to the
documents provided to him, which was evident in his reasoning. The
court was of the view that the adjudicator had reviewed the amounts
in the invoices and it was far from clear that Eastland's
set-off charges had been notified to Qualibuilt, or that Qualibuilt
had agreed to bear those costs.
In reaching this conclusion, the court determined that the
process upon which the adjudicator had embarked was consistent with
his obligations under the Act. That is, the adjudicator identified
the construction work within the contract and he valued that
The court was therefore satisfied that there had been no
jurisdictional error on the part of the adjudicator.
Poking at an adjudicator's decision should only be done
after careful consideration and in limited circumstances otherwise
you might find yourself on the receiving end of a poke from a
Judge, together with a big legal bill!
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