This was an application for judicial review of an adjudication decision under the adjudication legislation in Queensland. JJ McDonald & Sons Engineering Pty Ltd (JJ) had entered into a subcontract with CEPM Pty Ltd (CEPM) that required CEPM to supply and install temporary framework, fix and tie the reinforcing steel and place and finish concrete at a dam project in central Queensland. CEPM served a payment claim on JJ for $175,295.97 and JJ served a payment schedule advising that CEPM's payment claim had been assessed at $24,445.12. CEPM then applied for an adjudication and the adjudicator awarded CEPM $144,082.18.
The following two issues were to be decided:
1 Whether the adjudication decision sought to be reviewed was a decision of an administrative character made under an enactment.
2 Whether the adjudicator was wrong in the following two counts:
2.1 In deciding that a dayworks valuation schedule (that was not attached to the payment schedule although referred to in the schedule) could not be considered in the adjudication;
2.2 In finding that JJ had accepted CEPM's lump sum price for variations.
Reference
An adjudicator's decision is subject to judicial review under the Judicial Review Act as it satisfied the two necessary criteria: (1) that the decision was expressly or impliedly required or authorised by an enactment; and (2) the decision itself conferred, altered or otherwise effected legal rights and obligations.
Whether the reference to the dayworks valuation schedule without attaching it was enough to constitute providing a reason for the withholding of payment was a question of fact. The only arguable ground on the material before the court was that the adjudicator had made an error in law, as there was no evidence of any breach of the rules of natural justice, any misunderstanding of the statutory requirements or failure of the adjudicator to comply with any professional requirement.
There was evidence to support the adjudicator's finding an acceptance by conduct of CEPM's offer of a lump sum price for variations or an estoppel. It was not demonstrated that the adjudicator was wrong in his application of the relevant law or that this conclusion, based on his findings of fact and the application of the law to those facts, was so plainly wrong as to be an error in law. The court was not persuaded that any relevant error had been demonstrated.
Contact Fenwick Elliott on 020 7421 1986 or NGould@fenwickelliott.co.uk
*Full case details
JJ McDonald & Sons Engineering Pty Ltd vs , RICS Dispute Resolution Service Qld & CEPM Pty Ltd
Postscript
This is the first case to consider the Queensland adjudication legislation, the Building and Construction Industry Payments Act, which came into effect for all construction contracts entered into after the 1 October 2004. Queensland has legislated for judicial review under the Judicial Review Act whereas New South Wales which has very similar adjudication legislation to Queensland does not, and the New South Wales Supreme Court has limited the grounds to challenge an adjudicator's decision as a result. During the course of the decision, Dutney J observed "… that unless decisions under this legislation are excluded from the operation of the Judicial Review Act the benefit of prompt periodic payments to contractors, which is the stated purpose of the Act, is likely to be defeated by applications for review ..." It will be interesting to see if the Queensland legislators act on this comment and limit the challenges to an adjudicator's decision.
