AM Darlinghurst Investment Pty Ltd as trustee for AM Darlinghurst Investment Trust v Growthbuilt Pty Limited

In this case, AM Darlinghurst Investment Pty Ltd, as trustee for AM Darlinghurst Investment Trust, sought judicial review of an adjudicator's determination made under the Building and Construction Industry Security of Payment Act 1999 (NSW). Growthbuilt Pty Limited was the respondent in the original adjudication and in the subsequent judicial review proceedings. The dispute centred around an adjudication decision that awarded Growthbuilt a payment sum in relation to a construction contract. The parties contested the validity and the basis of the adjudicator's decision.

The central legal issues that the court needed to address were whether the adjudicator made a jurisdictional error by failing to consider documents that were provided to them during the adjudication process and whether it was appropriate for the adjudicator to rely on grounds that were allegedly not advanced by either party. Specifically, the court had to determine if the adjudicator's failure to consider a report that was based on material from 'without prejudice' communications constituted a jurisdictional error. Additionally, the court examined if the adjudicator's reliance on certain grounds not explicitly argued by the parties constituted a reviewable error.

The court held that the adjudicator did indeed make a jurisdictional error by not considering certain documents provided, including a report that relied on 'without prejudice' material. The court found that the adjudicator's failure to consider these documents was a breach of natural justice and thus, the decision was flawed. Furthermore, the court found that the adjudicator erred by relying on grounds that were not presented by the parties, which also constituted a jurisdictional error. The court concluded that the adjudicator's decision was invalid due to these errors, leading to the quashing of the adjudicator's determination.

The final orders of the court included the quashing of the adjudicator's determination and the referral of the matter back to a different adjudicator for reconsideration. This decision highlights the importance of thorough and fair adjudication processes, particularly in relation to the consideration of all relevant material and adherence to the grounds of argument presented by the parties.