The Supreme Court of Queensland has ruled that an
adjudicator's decision in a building and construction dispute
was final, even though the methodology used to make the decision
The case, Uniting Church in Australia Property Trust (Qld) v
Davenport & Anor, is a timely reminder to take care when
preparing for adjudication. If an adjudicator makes a decision
based on a certain methodology, the parties will be forced to treat
that as final and binding.
The applicant, the Uniting Church in Australia Property Trust,
entered into two construction contracts with the second respondent,
Hindmarsh Construction Queensland Pty Ltd. Two payment claims were
made by Hindmarsh against Uniting Church, and Hindmarsh then
invoked the adjudication mechanism for payment claims provided
under the Building and Construction Industry Payments Act 2004
(Qld) (BCIPA). The first respondent, Philip Davenport, was
appointed as the adjudicator.
Under the BCIPA, there are certain matters the adjudicator can
consider when deciding the amount payable on the payment claims.
For example, the adjudicator can consider the terms of the
construction contracts, the relevant payment claim, the payment
schedule and the results of any inspections carried out by the
After the adjudicator had made his decision, Hindmarsh
questioned the methodology used to decide the amount payable, and
wrote to the adjudicator to ask that his decision be corrected.
Under the BCIPA, an adjudicator can correct certain
'clerical' mistakes in the decision. Uniting Church also
wrote to the adjudicator, stating that the matters raised by
Hindmarsh were not errors that could be amended by the adjudicator
under the BCIPA, and that the adjudicator should not alter his
The adjudicator wrote to the parties to let them know that he
agreed with Hindmarsh and was intending to alter his calculation of
the preliminary costs distribution for each of the construction
contracts. He also requested any further submissions.
This gave rise to the application to the Supreme Court.
Can the adjudicator correct his mistake?
Justice Daubney said that the question was whether the
adjudicator's mistake fell within the realm of the BCIPA's
definition of a mistake. Given that this was clearly not a clerical
mistake, and that the adjudicator's mistakes were not defects
of form, it essentially came down to whether the adjudicator's
decision contained errors from an accidental slip or omission, a
material miscalculation of figures or material mistakes in the
description of a person, thing or matter.
The Court held that the adjudicator had not made an
unintentional error, and that his original calculations didn't
involve any sort of miscalculation. Instead, the adjudicator
proposed to use a completely different methodology to calculate the
amounts in dispute. The Court said that the proposed alteration
would substitute a new calculation, as opposed to simply amending a
Jurisdictional error and the Judicial Review Act 1991
The Court concluded that in this instance, it would be an act of
jurisdictional error if the adjudicator amended his decision. It
was held that the Court may stop the adjudicator from committing
this jurisdictional error by granting appropriate relief
– in this case, an injunction to prevent him from
changing his adjudication decision.
Hindmarsh argued that the amendments to the Judicial Review Act
1991 prohibited granting such relief. However, the Court held that
this was an application for injunctive relief pursuant to the
Judicial Review Act and that there would therefore be an avenue
open for review.
The powers of an adjudicator
It is clear that an adjudicator may correct certain mistakes
made in the decision making process. However, if modifying a
mistake could be classed as a 'complete change of
reasoning', the adjudicator would be acting outside of his
power as an adjudicator. In this case, the adjudicator was
permanently restrained from changing his decision.
What this means for you
This case shows that an adjudicator's decision will be
final, with the exception of correcting simple clerical errors. It
is therefore essential that adjudication submissions are carefully
prepared and that they clearly explain your arguments and the
circumstances of your dispute. The Supreme Court has demonstrated
that once adjudicators formulate the methodology for making their
decision, the methodology can't be changed – it can
be treated as gospel.
If passed by the Parliament in its current form, the Retail Leases Amendment (Review) Bill 2016 will represent a significant update to the Retail Leases Act 1994 (Act).
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