A-Civil Aust Pty Ltd v Ceerose Pty Ltd

A-Civil Aust Pty Ltd (the appellant) sought to appeal a decision of the primary judge concerning an adjudication determination made under the *Building and Construction Industry Security of Payment Act 2004* (NSW). The dispute arose from an adjudication where Ceerose Pty Ltd (the first respondent) was the claimant and A-Civil Aust Pty Ltd was the respondent. The primary judge had found that the adjudicator had committed a jurisdictional error by denying the respondent procedural fairness.

The central legal issue before the Court of Appeal was whether the adjudicator’s determination was affected by jurisdictional error, specifically concerning whether the respondent was denied procedural fairness. This question hinged on whether the basis of the adjudicator’s determination regarding retention monies was properly before the adjudication, and whether the respondent could have reasonably anticipated that this issue would form the basis of the determination.

The Court of Appeal, in dismissing the appeal, affirmed the primary judge's finding that the adjudicator had denied the respondent procedural fairness. The Court reasoned that the adjudicator had introduced a new basis for calculating the retention monies that had not been raised by the claimant in its application, nor foreshadowed in any way during the adjudication process. Consequently, the respondent was not afforded a proper opportunity to respond to this new basis, thereby constituting a jurisdictional error. The Court applied the principle that an adjudicator must act within their jurisdiction, which includes affording parties procedural fairness by ensuring they have notice of the case they are required to meet.

The appeal was dismissed, and the appellant was ordered to pay the first respondent’s costs of the appeal.