Nefiko Pty Ltd v Statewide Form Pty Ltd (No 2)

The dispute between Nefiko Pty Ltd and Statewide Form Pty Ltd arose from a construction project governed by the Building and Construction Industry Security of Payment Act 1999 (NSW). Nefiko, the principal contractor, sought to enforce an adjudicator's determination against Statewide, a subcontractor, for an outstanding payment. The central issue was whether the adjudicator had jurisdiction to determine the identity of the parties to the construction contract, and if the decision was subject to review for jurisdictional error. Additionally, Nefiko argued that the adjudicator had breached the rules of natural justice by not considering all relevant facts.

The court was required to examine whether the identity of the parties to the construction contract was a jurisdictional fact that needed to be determined by the adjudicator. It also needed to assess whether the adjudicator's decision on this matter could be reviewed for jurisdictional error, and whether the adjudicator's failure to consider all relevant facts amounted to a denial of natural justice. The distinction between the determination of a jurisdictional fact with binding legal effect and the formation of an opinion by an administrative body in relation to a jurisdictional fact was also central to the decision.

The court held that the identity of the parties to the construction contract was a jurisdictional fact. However, it found that the adjudicator's determination of this fact was not subject to review for jurisdictional error because it did not result in a binding legal effect. The court distinguished between the determination of a jurisdictional fact with binding legal effect and the formation of an opinion by an administrative body in relation to a jurisdictional fact, concluding that the latter did not give rise to a jurisdictional error. Furthermore, the court found that the adjudicator had not breached the rules of natural justice by failing to consider all relevant facts, as the omission did not affect the outcome of the adjudication.

The court dismissed Nefiko's application for judicial review, holding that the adjudicator's decision was not subject to review for jurisdictional error or breach of natural justice. The adjudicator's determination of the identity of the parties to the construction contract was affirmed, and the court did not interfere with the outcome of the adjudication.