The WA Supreme Court once again offered guidance to adjudicators
on the proper way to determine pay disputes under the
Construction Contracts Act 2004 ("CCA").
In Cooper & Oxley Builders Pty Ltd v Steensma and
Others  WASC 386, the Court reminded adjudicators
where a construction contract allows principals to set off
their own claims for defects or delays against the contractor's
payment claims, the adjudicator must take those set-off claims into
account in evaluating the contractor's payment claims;
in determining payment claims, adjudicators must take into
account all relevant evidence as at the date of the determination,
and not ignore evidence just because it was raised for the first
time after adjudication had been sought; and
the default terms in Schedule 1 of the CCA should only be
implied into a construction contract if that contract does not deal
with the matters covered by the implied terms at all, and not just
because the contract does not deal with those matters in the same
way as the implied term. For example, if there are no payment terms
in the contract at all, the default payment terms are implied.
However, if the contract does contain express payment terms but
those terms do not require written notice to be given in
circumstances where written notice would be required under the
default terms, that is no reason to imply the default terms into
According to Le Miere J, adjudicators who fail to apply any of
these propositions will fall into jurisdictional error and their
determinations will be overturned as a result. It is still
necessary to show "jurisdictional error" before an
adjudicator's determination can be overturned by a court,
despite what we said in Construction Law Series Part 9 because of two
important developments in December 2016, one of which took place in
the High Court and the other, in the NSW Court of Appeal. We will
blog about these developments very soon.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A lessee will need to demonstrate that the genuine interests of the lessor will be protected if relief is granted.
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