David Hurst Constructions Pty Ltd v Durham

David Hurst Constructions Pty Ltd sought judicial review of an adjudicator’s determination in a dispute with Durham over payments under a construction contract. The Federal Circuit and Family Court of Australia was tasked with reviewing the adjudicator's decision.

The primary legal issues addressed were whether the adjudicator considered material in breach of section 20(2B) of the Building and Construction Industry Security of Payment Act 1999, whether the adjudicator failed to comply with section 22(2) of the Act, and if any errors by the adjudicator invalidated the determination. The court also considered whether there was a denial of procedural fairness and whether section 21(4) of the Act imposes a mandatory requirement on adjudicators when they are unable to make a determination on the evidence before them.

The court held that the adjudicator did not consider material in breach of section 20(2B) and did not fail to comply with section 22(2) of the Act. The court found that any misunderstanding of the terms of the contract or their application did not invalidate the determination. The court also held that there was no denial of procedural fairness and that section 21(4) of the Act does not impose a mandatory requirement on adjudicators if they are unable to make a determination on the evidence before them. The court further held that the Act does not impose any evidentiary onus or presumption on any party.

The court dismissed the application for judicial review, affirming the adjudicator's determination. The orders made included the dismissal of the application, with no orders as to costs.