Well drafted security of payment legislation would provide that if the claimant makes an application for adjudication, and the adjudicator decides that there is no jurisdiction, then the claimant should pay the adjudicator’s fees. But the legislation in Australia does not currently say that. By way of example, section 30 of the Building and Construction Industry Security of Payment Act 2009 (SA) provides that an adjudicator is entitled to be paid for adjudicating an adjudication application. It might well be thought that that means a valid adjudication application.
Similarly, if anything is agreed by way of fees between the adjudicator in the parties, a sensible agreement might include the same provision.
But what is the position where an adjudicator spends a considerable amount of time considering what purports to be an adjudication application, and then concludes that there was never a valid payment claim, and hence no adjudication application, or adjudication within the jurisdiction conferred by the Act? As the High Court said in Continue reading