The Pending Tray

cljMy article on penalties has now been published in Construction Law Journal. I wrote that a while ago, but it evidently takes some time for the things to work their way through the legal press.

Meanwhile, I have been busy in various courts on adjudication issues, on which decisions are still pending.

In the Supreme Court of the Northern Territory, we are awaiting a reserved decision from Kelly J on whether an adjudicator rightly dismissed an adjudication application for being out of time. In the Northern Territory, an adjudication has to be commenced within 90 days of when the payment dispute arises, which is normally when a payment claim is rejected. The issue here is that the applicant made a payment claim when it did not have the security required by the contract in place; unsurprisingly, that payment claim was rejected. The applicant then put at least some of the required security in place, and made an identical payment claim, which was also rejected. Did the 90 days start run when the payment claim was first rejected (in which case the adjudication was out of time) or did time start running again when that payment claim was re-presented (in which case the adjudication was in time, just)?

In the District Court of South Australia, the Chief Judge has reserved judgment on a default issue. My client claimants made a payment claim whilst, at the same time, negotiations were going on between the parties as to a proposed resolution of that and other disputes. Instead of putting in a conventional payment schedule, the other party merely wrote an email referring to a meeting at which that dispute was discussed. Did that email constitute a sufficient payment schedule for the purpose of the legislation? The email did not contain a scheduled amount, but should the Court try to identify a scheduled amount from affidavit evidence from the respondent as to what was being discussed and from which amounts were subsequently paid?

In the Court of Appeal of the Northern Territory, the decision of Kelly J in CH2M Hill Australia Pty Limited & Anor v ABB Australia Pty Ltd & Anor [2016] NTSC 42  is being appealed; the hearing is on Monday. At first instance, I had successfully argued before Kelly J that an adjudicator’s decision should be quashed on what was referred to as the “Rubber Stamping Ground”, namely that instead of any active intellectual engagement with the all-important issue of delay, the adjudicator had merely adopted (or “rubber stamped”) the claimant’s entire case on delay and delay damages without any analysis of the respondents’ case. Other issues before the court will be whether the adjudication should have been barred under section 27 of the Northern Territory Act, on the basis of the substantial overlap between the issues in this adjudication and the issues in a previous adjudication, whether the adjudication should have been dismissed on the basis that it was too complex and whether the appropriate remedy, where an adjudicator’s determination is invalid, is for the adjudication to be sent back to him for reconsideration by order of mandamus.


Leave a Reply