Tag Archives: adjudication

Now We are Six

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nowwearesixThe decision of the Supreme Court of the United Kingdom recently in Aspect Contracts (Asbestos) v Higgins Construction [2015] UKSC 38 might well provide a good reason for adjudication losers who paid up on an adjudication determination in late 2009, or where it is coming up for 6 years since a payment was made pursuant to an adjudication determination, to think about dusting off their files.

The way works is like this. All around the world, adjudication is intended as a “pay now, argue later” scheme. If the adjudicator finds for a claimant, then the respondent has to pay up, but without prejudice to the respondent’s right to reclaim that amount in subsequent litigation or arbitration. But what is the basis of that right to reclaim?

During the currency of most formal building contracts, there is a contractual answer to be found in the final account provisions. After the contract work has been completed, these final account provisions typically require a calculation to be made of the amount eventually due under the contract. All the amounts that have been paid up to that point to take into account, and the balance is paid – or repaid – as the case may be. If the contractor has been paid more than he is entitled to, then the express terms of the contract provide a route whereby the principal gets the excess back.

In the absence of a final account provision, the right of the principal to recover any overpayment is much more problematic. There are certain circumstances where the principal might have a right of recovery in restitution, i.e. for money had and received, particularly where the money has been paid pursuant to a relevant mistake. It might be possible, for example, for the principal to demonstrate a relevant mistake if the contractor has defrauded her by misrepresenting the work that he has done. Somewhat more rarely, the principal might be able to demonstrate that she has paid as a result of duress; again, that duress would enliven a right of recovery in restitution. Yet again, in the even more improbable case that the contract or has done no work at all, the right of recovery would be enlivened by a total failure of consideration. These categories are conveniently summarised at Continue reading →

The Apparent Growth of Bias

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sliwinskiIt has always been the case that actual or apparent bias by an adjudicator will render the adjudicator’s decision liable to be quashed on the grounds of natural justice. In the early days of adjudication, cases in which bias was as established were rather rare, but it seems that the their numbers are growing, as illustrated by the recent English case of Paice & Anor v MJ Harding (t/a MJ Harding Contractors) [2015] EWHC 661 (TCC). The case is interesting because it exemplifies how apparent bias can arise from the actions, not of the adjudicator himself, but of his support staff.

There was a complex history to this particular adjudication, which was the 4th adjudication between the parties arising out of a contract for the construction of 2 houses. The adjudicator was Robert Sliwinski, an experienced chartered surveyor. He had been the adjudicator in the 1st and 2nd adjudications, in both of which he had ordered the claimant owners to pay money to the defendant builder.

The apparent bias arose out of a couple of telephone conversations that took place between the claimant owners and Mr Sliwinski’s wife, who was also his office manager. Quite how Continue reading →

Winning Slow

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Sometimes the laslothw acts quickly, and sometimes excruciatingly slowly. I was asked by my chambers in London, Keating Chambers, the other day to approve a summary of the decision of the Supreme Court in Northern Territory in Department of Construction and Infrastructure v Urban and Rural Contracting Pty Ltd [2012] NTSC 22. I was counsel for the contractor who had applied for and got an adjudicator’s determination in its favour, and I won on the day, and in the long run. In the meantime, the reported decision would suggest that I had lost.

Here is how it all happened. Continue reading →

SA to join Queensland?

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Australia SA and QIt looks like South Australia may shortly be joining Queensland in the abolition of the ANA system for appointing adjudicators.

A review was recently commissioned from Alan Moss, who is a former District and Youth Court judge, and this has now been published.The main recommendation of the Review is that the Minister should remove the authorisation of all of the existing ANAs, and instead appoint the relevant government officer, who is the Commissioner for Small Business, as the sole ANA. In this way, it is proposed to deal with the widely perceived institutional bias in the ANA system without the need for amending legislation.

This review is very welcome, the ANAs in South Australia having Continue reading →

Support for the Bust?

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bust

Update; see Even Less Support fo the Bust

The construction industry in Australia seems to be going through rather a hard time at the moment, and there is a fair bit of insolvency about. There is topicality in the question,

“Can a company in liquidation avail itself of the Security of Payment Legislation by validly commencing an adjudication?”

It is not hard to find examples of liquidators who take the view that the Security of Payment Legislation is available for them[1], or of adjudicators who share that view, but what is the true legal position?[2]

There appear to be no decided cases on the validity of an adjudication process where the claimant was in liquidation before commencing the adjudication. However, it is not a question that is entirely devoid of authority, and indeed the answer “no” to the question posed above emerges from Continue reading →

Drop the Dropbox

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Is dropboxDropbox a valid means of service? It might be if it is agreed, or the documents are in fact downloaded by the recipient. But don’t count in it.  In Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd and Anor [2014] QSC 30 an adjudicator’s determination was found to be of no effect because of the adjudicator’s error as to the validity of service Continue reading →