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This case involved judicial review of an amended adjudication amount, awarded pursuant to the Building Industry Fairness (Security of Payment) Act 2017. Jackson J concluded that the adjudicator had made a jurisdictional error in awarding amounts not included in the payment claim, but refused to interfere with a decision in relation to the payment of the adjudicator’s fees and expenses.
11 May 2021
By this application, the principal under a construction contract sought declaratory relief that parts of an amended adjudication decision were affected by jurisdictional error and therefore void. .
Amounts awarded not sought in the payment claim
The amended adjudication decision was made upon a payment claimed given by the contractor in October 2020. . Notably, that payment claim claimed no amounts for certain variations. . Despite that, “the amended adjudicator’s decision included the full amount of each of those variations in the amended adjudicated amount to be paid by the principal to the contractor”. .
Jackson J accepted that, by including those amounts, the adjudicator had acted in excess of their statutory jurisdiction. By reference to a number of provisions (including s 75(1) of the Building Industry Fairness (Security of Payment) Act 2017, concerning the making of a payment claim), his Honour concluded that (at ):
“the jurisdiction of the adjudicator is limited to deciding the amount of the progress payment by reference to the amount stated in the payment claim as the amount that the claimant claims. The adjudicator cannot add other amounts that are not included in the claimed amount.”
It followed that the amended adjudicated amount was void to that extent. Accordingly, his Honour ordered that the amount be reduced to remove the unclaimed sums. .
Whether the adjudicator’s decision concerning payment of their costs should be disturbed
The amended adjudicator’s decision also decided that the principal was to pay all of the adjudicator’s fees and expenses. . The principal argued that, because the adjudicator’s decision was affected by jurisdictional error, “it follows as of course … that the contractor should be ordered to pay 50 per cent of the adjudicator’s fees and expenses”. .
Jackson J rejected this argument, stating that (at ):
“Neither the finding that part of an adjudicator’s decision is affected by jurisdictional error, nor the severance of the adjudicator’s decision to allow the part of the decision not affected by jurisdictional error to remain binding engages any separate power in the court to review a decision of an adjudicator as to the proportion of the adjudicator’s fees and expenses to be paid by a claimant or respondent.”
His Honour considered that the principal had not identified “any legal basis” to find that the contractor should pay 50 percent of the adjudicator’s fees and expenses. . Further, even if there was some discretionary power to do so, having regard to the adjudicator’s reasons for making this decision, no order should be made interfering with it. .