1155 Nepean Highway Pty Ltd (ACN 630 087 428) v Promax Buildings Pty Ltd (ACN 630 303 801) (and others according to the attached schedule)

The case involves a dispute between 1155 Nepean Highway Pty Ltd and Promax Buildings Pty Ltd, among others, and was heard by the Federal Circuit Court of Australia. The applicant, 1155 Nepean Highway, sought judicial review of an adjudicator's determination made under the Building and Construction Industry Security of Payment Act 2002 (Vic). The applicant had failed to provide a payment schedule in response to a payment claim by Promax Buildings, which resulted in the applicant being barred from providing an adjudication response. The applicant challenged the adjudicator's determination on several grounds, including that the adjudicator impermissibly drew an adverse inference from the applicant's failure to provide a payment schedule and adjudication response, overlooked relevant evidence, and failed to conduct an independent assessment of the claim.

The court was required to determine whether the adjudicator's determination was flawed due to the adverse inference drawn from the applicant's failure to provide a payment schedule and adjudication response, the overlooking of relevant evidence, and the failure to conduct an independent assessment of the claim. The court found that it was permissible for the adjudicator to draw an adverse inference from the applicant's failure to provide a payment schedule but not from the absence of an adjudication response. However, the court held that any inference drawn by the adjudicator was permissible. The court also found that the evidence that the applicant claimed was overlooked by the adjudicator was not before the adjudicator and was irrelevant to the review of the determination. Finally, the court held that the brevity of the adjudicator's reasons did not indicate a failure to independently assess the claim, and the reliance on the trade summary was appropriate given its contractual significance.

The court dismissed the applicant's application for judicial review, finding that the adjudicator's determination was not flawed. The court held that the adjudicator was required to consider the provisions of the contract but not the incorporated documents, and therefore, the adjudicator was not required to consider the contractually incorporated plans. The court did not make any orders.