22 Adjudicator’s determination
(1) An adjudicator is to determine: (a) the amount of the progress payment (if
any) to be paid by the respondent to the claimant (the
"adjudicated amount"), and (b) the date on which any such amount became or
becomes payable, and (c) the rate of interest payable on any such amount.
(2) In determining an adjudication application, the adjudicator is to consider
the following matters only: (a) the provisions of this Act, (b) the
provisions of the construction contract from which the application arose, (c)
the payment claim to which the application relates, together with all
submissions (including relevant documentation) that have been duly made by the
claimant in support of the claim, (d) the payment schedule (if any) to which
the application relates, together with all submissions (including relevant
documentation) that have been duly made by the respondent in support of the
schedule, (e) the results of any inspection carried out by the adjudicator of
any matter to which the claim relates. (3) The adjudicator’s determination
must: (a) be in writing, and (b) include the reasons for the determination
(unless the claimant and the respondent have both requested the adjudicator
not to include those reasons in the determination). (4) If, in determining an
adjudication application, an adjudicator has, in accordance with section 10,
determined: (a) the value of any construction work carried out under a
construction contract, or (b) the value of any related goods and services
supplied under a construction contract, the adjudicator (or any other
adjudicator) is, in any subsequent adjudication application that involves the
determination of the value of that work or of those goods and services, to
give the work (or the goods and services) the same value as that previously
determined unless the claimant or respondent satisfies the adjudicator
concerned that the value of the work (or the goods and services) has changed
since the previous determination. (5) If the adjudicator’s determination
contains: (a) a clerical mistake, or (b) an error arising from an accidental
slip or omission, or (c) a material miscalculation of figures or a material
mistake in the description of any person, thing or matter referred to in the
determination, or (d) a defect of form, the adjudicator may, on the
adjudicator’s own initiative or on the application of the claimant or the
respondent, correct the determination.
Perform
(NSW) Pty Ltd v MEV-AUS Pty Ltd Anor [2009] NSWCA 157 (23 June 2009): Giles JA,
McColl JA, Young JA
KEY ISSUES:
whether adjudicator's view as to whether payment schedule could
"indicate"reasons for nil valuation by referring to previous payment
schedule could make adjudication void - what is indicated in a payment schedule
is for adjudicator to determine - did not fail to comply with basic and
essential requirements of valid adjudication
Levadetes
v Iberian Artisans [2009] NSWSC 641 (15 June 2009): McDougal J
KEY ISSUES: whether adjudicator
erred - whether a contract or arrangement - whether "construction
contract"was "for the carrying out of residential building work.
Perform
(NSW) Pty Ltd v Mev-Aus Pty Ltd trading as Novatec Construction Systems [2009]
NSWSC 416 (5 May 2009): Rein J
KEY ISSUES:
whether adjudication under Building and Construction Industry Security of
Payment Act 1999 creates issue estoppel.
Olbourne
v Excell Building Corp Pty Limited [2009] NSWSC 349 (1 May 2009): Rein J
KEY ISSUES: grounds upon
which an adjudication determination can be reviewed the existence of a
construction contract under s 4 of the Building and Construction Industry
Security of Payment Act 1999 is a basic and essential element of the Act
meaning of ‘arrangement’in s 4 facts and
circumstances giving rise to an ‘arrangement’
Holdmark
v Melhemcorp [2009] NSWSC 305 (23 April 2009): Macready AsJ
KEY ISSUES: application
to an Adjudicator under the Building and Construction Industry Security of
Payment Act 1988 for correction of an adjudication under s 22(5) of the Act.
Held that is one of the fundamental requirements of the Act. Injunction granted
to restrain enforcement of part of award.
Integral
Energy Australia v Kinsley &Associates Pty Limited [2009] NSWSC 64 (18
February 2009): Hammerschlag J
KEY ISSUES:
challenge to validity of adjudication determination on the basis that
adjudicator failed to include the reasons for his determination under s
22(3)(b) of the Act - whether reasons given were sufficient.
Corbett
Court Pty Limited v Quasar Constructions (NSW) Pty Limited [2008] NSWSC 1423
(19 December 2008): Hammerschlag J
KEY ISSUES:
recoverability of interest interest on ultimate verdict after contested
hearing on adoption of referee’s report where ultimate verdict obtained
by the plaintiff is the result of various adjustments and where defendant had
obtained more than amount to which it was ultimately entitled by use of the
provisions of the Building and Construction Industry Security of Payment Act
1999 (NSW) purpose of interest award to properly compensate plaintiff
for practical loss
Rubana
Holdings Pty Limited v 3D Commercial Interiors Pty Ltd [2008] NSWSC 1405 (12
December 2008): McDougall J
KEY ISSUES:
whether determination void - whether adjudicator lacked jurisdiction to deal
with application - abuse of process - whether a claimant under the Act can seek
to enforce its claim concurrently by proceedings in court and by adjudication -
Building and Construction Industry Security of Payment Act 1999
Plaza
West Pty Ltd v Simon's Earthworks (NSW) Pty Ltd Anor [2008] NSWCA 279 (31
October 2008):
Allsop P, Giles JA, Hodgson JA
KEY ISSUES:
whether error of fact or law sufficient to vitiate adjudication whether
adjudicator fulfilled statutory task whether denial of procedural fairness.
Broad
Construction Services (NSW) Pty Limited v Michael Vadasz [2008] NSWSC 1057 (21
August 2008): McDougall J
KEY ISSUES:
adjudicator did not consider expert's report - whether denial of procedural
fairness - whether report constituted a submission 'duly made' in support of
payment schedule.
Perform
(NSW) Pty Limited v Mev-Aus Pty Limited trading as Novatec Construction Systems
&Anor [2008] NSWSC 858 (19 August 2008): Einstein J
KEY ISSUES: whether
the Adjudicator made an error of a character that was within his jurisdiction -
Whether the Adjudicator’s findings constitute a failure by the
Adjudicator to comply with the requirements contained in s.22(2)(d) of the Act
- whether Adjudicator denied natural justice - whether the Adjudicator failed
in good faith to exercise the power to make an adjudication.
J
&Q Investments Pty Ltd v ZS Constructions (NSW) Pty Ltd [2008] NSWSC 838
(30 July 2008):
KEY ISSUES: whether
adjudicator denied party natural justice by failing to consider portions of
adjudication response whether failure to exercise powers in good faith
whether adequate reasons given for valuation of claim.
Firedam
Civil Engineering v KJP Construction [2007] NSWSC 1162 (25 October 2007):
Austin J
KEY ISSUES:
adjudicator disregards adjudication response on ground that payment schedule
was not provided because not received by claimant's director - errors of law -
denial of natural justice - whether relief should be by declarations and
injunctions or orders in nature of certiorari.
Halkat
Electrical Contractors Pty Ltd v Holmwood Holdings Pty Ltd [2007] NSWCA 32 (28
February 2007): Giles JA, Santow JA and Tobias JA
KEY ISSUES:
Adjudication —Determination based on matters wholly unrelated to the
matters in s 22 —Essential precondition to the existence of a valid
determination not met
John
Holland Pty. Limited v. Roads Traffic Authority of New South Wales Ors. [2007]
NSWCA 19 (26 February 2007): Beazley JA, Hodgson JA, Basten JA
KEY ISSUES:
whether submissions of respondent "duly made"- Whether adjudicator
was required to consider them - Whether determination of adjudicator invalid
because of failure to comply with s.22 of the Act, lack of good faith or denial
of natural justice.
John
Holland Pty Ltd v Rta of New South Wales and Anor [2006] NSWSC 1202 (17
November 2006): Gzell J
KEY ISSUES: whether
adjudicator failed to consider a submission in an adjudication application -
Whether a denial of natural justice - Whether determination void.
Pacific
General Securities Ltd and Anor v Soliman and Sons Pty Ltd and Ors [2006] NSWSC
13 (31 January 2006): Brereton J:
KEY ISSUES:
whether 12-month limit for serving a claim is a basic and essential requirement
non-compliance with which results in invalidity held it is not ;
whether payment claim made within 12 months of performance of the latest of the
construction work to which it related whether specificity in payment
claim is basic and essential requirement non-compliance with which results in
invalidity
Tolfab
v Tie [2005] NSWSC 326 (5 July 2005): Macready JA
KEY ISSUES: whether
the decision of an Adjudicator should be set aside for failure to take into
consideration material in the Adjudication Responsefailure to give proper and
adequate reasonsfailure to value the workresulting in a breach of natural
justice, or failure by the Adjudicator to bona fide exercise power.
Parist Holdings Pty Ltd v WT Partnership Australia Pty Ltd
[2003] NSWSC 365 (5 May 2003): Nicholas J
KEY ISSUES: whether adjudicator acted ultra vires in adjudication and determination – whether adjudicator’s determination a nullity – whether payment claim is foundation of jurisdiction of adjudicator
Musico &Ors v Davenport &Ors [2003] NSWSC 977 (31 October
2003) : McDougall J
KEY ISSUES: whether the determination of an adjudicator under the Act is open to judicial review and upon what grounds – whether there were errors of law, jurisdictional errors or denial of natural justice – whether discretionary reasons for refusal of relief
Transgrid v Siemens &Anor [2004] NSWSC 87 (25 February
2004) : Master Macready
KEY ISSUES: whether the determination of an adjudicator under the Act is open to judicial review – whether an adjudicator can exercise the powers of a certifier under the construction contract
Austruc v ACAACA v Sarlos &Anor [2004] NSWSC 131 (11
March 2004): McDougall J
KEY ISSUES: whether slip rule applicable – whether contract formed part of loan agreement – whether adjudicator permitted to consider statutory declaration attached to adjudication application – whether adjudicator required to give notice of intention to rely upon statutory declaration – whether adjudicator required to give respondent opportunity to respond to statutory declaration
John Holland Pty Limited v Cardno MBK (NSW) Pty Limited &
Ors [2004] NSWSC 258 (20 April 2004) : Einstein J
KEY ISSUES: whether adjudication application should be relevantly tied to the payment claim [such that the adjudication application cannot include reasons supporting the payment claim unless those reasons had been included in the payment claim
Kembla Coal &Coke v Select Civil &Ors [2004] NSWSC 628
(23 July 2004) : McDougall J
Isis Projects v Clarence Street [2004] NSWSC 714 (13 August
2004): McDougall J
KEY ISSUES: whether plaintiff entitled to recover amounts unpaid as a debt – whether progress claims identified work by single line item references – whether progress claims supported by sufficient evidence
Brodyn Pty. Ltd. t/as Time Cost and Quality v. Davenport &
Anor. [2004] NSWCA 394 (3 November 2004) : Mason P, Giles JA, Hodgson JA
KEY ISSUES: whether certiorari available – whether other relief available in respect of judgment, including stay of execution
Rothnere v Quasar &Ors [2004] NSWSC 1151 (26 November
2004) : McDougall J
KEY ISSUES: whether adjudication determination void – whether s22(4) applicable – whether compliance with s22(4) a fundamental requirement of the Act
Coordinated Construction Co v J M Hargreaves &Ors [2005]
NSWSC 77 (22 February 2005) : McDougall J
KEY ISSUES: whether determination void because adjudicated amount included amounts assumed (but not decided) not to be “for” construction work – whether determination in breach of the Act is unlawful – whether payment claim served on or from reference date
The Minister for Commerce (formerly Public Works &
Services) v. Contrax Plumbing (NSW) Pty. Ltd. &Ors. [2005] NSWCA 142 (6 May
2005): Hodgson JA, Bryson JA, Brownie AJA
KEY ISSUES: whether there was error in adjudicator’s determination in construction of contract – whether such errors could invalidate determination
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