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Adjudicator entitled to fee despite lack of jurisdiction.

19/05/2016

The scheme of the Building and Construction Industry Security of Payment Act 1999  is to provide construction contractors with a right to progress payments, despite any contractual provision to the contrary.  There is a mechanism, called adjudication, for the interim determination and valuation of those rights.

A subcontractor applied for adjudication of a payment claim.   It paid the adjudicator’s fees before he published his determination.  It was disappointed with the decision that the payment claim was invalid and no money was owing under it ( because it had already made other  progress claims for the same period).  However, that was no reason for clawing back the adjudicator’s fee for considering the evidence and determining the dispute. If the result denied him his fee, there is a risk that an adjudicator would be deflected from properly considering his own jurisdiction.

“A determination that no amount is to be paid because the claim is invalid is no less a determination than one which determines that no money is payable for some other reason.”

Read the full text of the decision in Alucity Architectural Product Supply Pty Ltd v Australian Solutions Centre; Alucity Architectural Product Supply Pty Ltd v Paul J Hick [2016] NSWSC 608.

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