Category Archives: Adjudication

Not Exactly A Payment Schedule

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Chief Judge Muecke of the South Australian District Court has recently retired, but before doing so he heard the case of Fabtech v Exact. He handed down judgment last week as [2017] SADC 44.

In a sense, the case is routine under the Building and Construction Industry Security of Payment Act 2009 (SA): a subcontractor – Fabtech – served a payment claim on the head contractor – Exact – but Exact failed to provide a payment schedule. And so the court gave summary judgment for the amount claimed. I was counsel for the successful subcontractor.

The interest in the case is in the side issues.

Intention

Exact’s initial position was to deny that the payment claim was a payment claim within the ambit of the Act. That position was abandoned before the court, but the denial had an effect: the court had in mind what Exact’s intentions were Continue reading →

Thanks for Nothing

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dead plantWell 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 →

Adjudication Review Time

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I have not been posting here as much as usual recently, for the prosaic reason that I have been fully stretched working on cases that have demanded full-time attention.

One advantage of the bar is that there is a sort of self-limiting protection against overwork: one can only be in one court at a time. And so I have had to turn away a number of briefs recently simply because I have been already briefed to do something else at the same time. When I was a solicitor, there was no such mechanism. So, “Sorry” to those I have had to say “no” to.

john-murrayThe great majority of what I have been doing has been in relation to adjudications, and I was very pleased to see that the Federal Government has launched a review into the absurd disparities between the Acts in different States and Territories, to be run by John Murray. I was honoured to be able to lead the Society of Construction Law Australia’s report into all of this in 2014: we came down firmly in favour of a federal system.  I have acted or advised in adjudications in all jurisdictions in Australia apart from Tasmania and the ACT, and have encountered no good reason at all for the present patchwork of quite different regimes in different States and Territories. The challenges and the best answers are the same everywhere.

The Federal Government’s Media Release is Continue reading →

Long Vac

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Just finished eating some supper outside. At 8.30, still 31 degrees.

It was pretty much the first I have seen of the sun today. Why? Because I have been working on an adjudication response.  The Christmas break has become the traditional time to launch adjudication applications, with their very short time scales.

When I started in the law in England, there was something called “long vacation” Which was the summer months of July and August.  Not a lot happened in July and August.

There might be something to be said for the idea that adjudication times should not run between, say, Christmas eve and mid-January. Continue reading →

Maxcon in The Shade

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chatswoodThe decision in Probuild v Shade Systems earlier this year[1] raised a few eyebrows.  At first instance in the Supreme Court In New South Wales, Emmett AJA had decided that the determination of an adjudicator might be quashed on the basis of a non-jurisdictional error off law on the face of the record.  There had previously been one or two decisions which had suggested this possibility; after all the effect of the decision in Chase Oyster Bar v Hamow Industries had been that the decisions of the adjudicators are amenable to certiorari, an error of law on the face of the record is one of the traditional grounds for certiorari (and in deed the other forms of judicial review, namely mandamus, prohibition, and quo warranto).

On the 23rd of December 2016 five judges in the New South Wales Court of Appeal overturned that decision in Shade Systems v Probuild Construction (No 2)[2], the decision of Basten JA (with whom all the other Judges agreed) was that it is only jurisdictional errors of law which suffice to quash an adjudicator’s determination Continue reading →

The Pending Tray

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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 Continue reading →

Adjudication in South Australia

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socla logoThe Society of Construction Law Australia’s submission on proposed reforms to the Building and Construction Industry Security of Payment Act 2009 (SA) are now up on the Small Business Commissioner’s website.

Unhappily for him, my fellow SoCLA director Andrew Robertson had to do the heavy lifting on this, my own time being swamped by other things. He did a great job, and my contribution was Continue reading →

Adjudication in the Northern Territory

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ichthysI have been spending a bit of time in Darwin. As it happens, I am an accredited adjudicator there, but this time I have been there as counsel, again bowling over a determination of another adjudicator.

The first outing was before the Chief Justice, obtaining interlocutory relief ex parte on notice to restrain the other party from enforcing the determination it had obtained pending the hearing of our challenge. The usual practice in the Northern Territory had not been to grant relief, but happily, the Chief Justice gave indications that he was persuaded by my submissions that we had a prima facie case, and as to the balance of convenience, that the factors to weigh in the balance were potentially

  • to keep the adjudication claimant of of its money for a couple of weeks or so, while the challenge was heard, contrasted with
  • to keep the adjudication respondent out of its money for perhaps a couple of years or so, for the payment to be recouped by full-scale arbitration poroceedings.

He was thus minded to follow the New South Wales practice, noted in Williams v Concreting Services [2013] NSWSC 85 per McDougall J: Continue reading →

Keeping Busy

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Those who visit these pages from time to time might have noticed that it has been a little while since my last post, and perhaps guess that this is a symptom of idleness.

In fact, the contrary is true. Since getting back from Europe and the United States, I have had far too little time for sidelines. In moving to the beautiful Myponga Beach, I had in mind that these days I go to the airport rather more often than I go to the law courts in Adelaide, and so it is been continuing to prove: I have been in Sydney on dispute avoidance board business and in Darwin on adjudication determination challenge business.

I did rather think that I might have been able to set a bit of precedent in the Northern Territory courts, in terms of bringing the Northern Territory into line with the rest of the country, and in particular New South Wales, on the topic of what introductory relief should be granted after an adjudication challenge has been launched, but before it can be heard by the court. In the Northern Territory, the typical Continue reading →