Iskra v MMIR Pty Ltd

The appeal concerned a dispute arising from an adjudication under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The appellant, Ganni John Iskra, had made a payment claim against the respondent, MMIR Pty Ltd, for work performed. MMIR Pty Ltd failed to provide a valid payment response, leading the adjudicator to determine the claimed amount in default. MMIR Pty Ltd subsequently sought judicial review of the adjudicator's decision. The appeal was heard by Bathurst CJ, Gleeson and Payne JJA of the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the adjudicator had merely allowed the payment claim in default due to the absence of a valid response, or whether the adjudicator had engaged in a process of evaluating the claim. The court also considered whether the adjudicator's decision could be set aside for jurisdictional error, and whether the *Building and Construction Industry Security of Payment Act 1999* (NSW) required the adjudicator to use legally correct language or subjected their determination to a "fine-tooth comb" examination.

The Court of Appeal held that an adjudicator is not required to use legally correct language and that their determination should not be subjected to a "fine-tooth comb" approach. The court found that the adjudicator had exercised their statutory function to determine the value of the construction work, even in the absence of a valid payment response. The court reasoned that the adjudicator's task was to determine the amount that was, in their opinion, due and payable, and that this process did not necessitate a detailed legal analysis of the claim when no opposing submissions were made. The court distinguished between a jurisdictional error and an error of fact or law, noting that the latter would not ordinarily be a ground for setting aside an adjudication.

The Court of Appeal allowed the appeal, vacated a stay order, and set aside the orders made by the primary judge. In their place, the court ordered that the summons filed by MMIR Pty Ltd be dismissed, that MMIR Pty Ltd pay the costs of the proceedings, and that the sum paid into court by MMIR Pty Ltd be paid out to Ganni John Iskra. The first respondent was also ordered to pay the appellant's costs of the appeal.