Don’t give an adjudicator the chance to get it wrong –Two recent high decisions have confirmed that even if an adjudication decision is wrong at law, it cannot be set-aside unless the adjudicator’s error is ‘jurisdictional’ in nature: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 and Maxcon Constructions Pty Ltd v Vadasz [2018] HCA 5
These decisions may discourage you to use the adjudication process under the Building and Construction Industry Payments Act 2004 (Qld) (Act) (or similar in other jurisdictions), however, the purpose of the Act is, and has always been, to ensure that a person is entitled to receive, and is able to recover progress payments for construction work carried out or goods supplied. The object of the Act is achieved by establishing a procedure that gives a person an entitlement to progress payments absent a written contractual right. The time frames under the Act are tight and “mistakes” can be made by the adjudicator however, the parties entitlements and remedies are not, and never have been, limited by the Act and those rights and entitlements exist (and can be balanced) after any adjudication decision (even if it is wrong at law).
Importance of these decisions to our clients – it is extremely important that well prepared submissions on entitlement and value are put before an adjudicator to prevent an adjudicator from making a decision that is wrong at law (and not subject to judicial review). Your rights and entitlements in adjudication begin with your contract and your payment claim and payment schedule. Our lawyers can assist in drafting contracts or special conditions to protect your rights, assist in administering your contract, prepare payment claims and payments schedules, or draft detailed submissions and statutory declarations in support of adjudication application or responses.
