Ceerose Pty Ltd v A-Civil Aust Pty Ltd

This matter concerned appeals and cross-appeals from decisions of the Supreme Court of New South Wales regarding adjudication determinations made under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The primary dispute involved whether an adjudicator had committed jurisdictional error in their assessment of payment claims.

The court was required to determine the scope of an adjudicator's obligation to "consider" matters under section 22(2) of the Act, specifically whether a failure to expressly refer to a particular issue indicated a failure to consider it. Further, the court had to consider whether an adjudicator's task was limited to deciding a dispute based on restricted materials, and if so, whether failing to investigate the "true merits" constituted jurisdictional error. The court also examined the meaning and operation of section 32A of the Act, including whether an adjudicator was entitled to fees when their determination was affected by jurisdictional error, and whether the adjudicator's decision to apportion costs was itself affected by such error.

The Court of Appeal held that the obligation to "consider" did not necessitate specific reference to every matter raised, but rather required the adjudicator to genuinely engage with the substance of the submissions. However, the court found that in one of the adjudication determinations, the adjudicator had indeed committed jurisdictional error by failing to properly consider a crucial aspect of the payment claim, leading to an overvaluation. This error justified setting aside part of the determination under section 32A of the Act. The court also determined that an adjudicator was not entitled to fees for work affected by jurisdictional error.

In the York Street proceedings, the appeal was dismissed, but the cross-appeal was allowed, resulting in the adjudication determination being set aside in part, with a revised adjudicated amount ordered. The appellant was ordered to pay the respondent's costs of the appeal and a specific sum. In the Elizabeth Bay proceedings, a similar outcome occurred, with the appeal dismissed and the cross-appeal allowed, leading to a partial setting aside of the adjudication determination and an order for payment of a specific sum.