Two recent decisions suggest this is the case, even outside NSW
where Supreme Court Justice Emmett has for the first time cast
doubt on the need for "jurisdictional error" as a
precondition to challenging adjudications.
In the WA case of BGC Contracting Pty Ltd v Citygate
Properties Pty Ltd  WASC 88, the Supreme Court quashed
an adjudicator's determination because:
it was delivered less than three hours after the expiry of the
time allowed by law, as extended by the consent of the parties;
the adjudicator had not demonstrated a proper "grappling
with the issues" either by giving reasons for decision or
making a determination which was clearly based on the terms of the
In the Victorian case of Krongold Constructions (Aust) Pty
Ltd v SR & RS Wales Pty Ltd  VSC 94, an
adjudicator's decision was overturned for:
insufficiently clear identification of the construction work
that had been done;
premature service of a notice under Victorian security of
the omission of some documents dealing with variations;
"not demonstrating any process of assessment of the value
of the claim other than merely adopting the amount
Earlier this year, in SSC Plenty Road Pty Ltd v Construction
Engineering (Aust) Pty Ltd  VSCA 119, Victoria's
Court of Appeal had overturned an adjudicator's determination
for similar reasons.
Even where jurisdictional and other errors are still treated
differently, then, Australian courts seem to be increasingly
prepared to review determinations of construction payment disputes
by adjudicators. If this trend continues, it may open up the way
for contractors and principals to challenge such determinations
without being overly concerned about whether the adjudicator's
error is "jurisdictional" even where technically, this
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Warranties can be risk-shifting mechanisms when the party giving the warranty is not the party at fault for the defect.
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