R v Pettersson; ex parte
[2015] TASSC 33
•30 July 2015
[2015] TASSC 33
COURT: SUPREME COURT OF TASMANIA
CITATION: R v Pettersson; ex parte Fenshaw Pty Ltd [2015] TASSC 33
PARTIES: FENSHAW PTY LTD
v
PETTERSSON, Scott
WATER INDUSTRY SOLUTIONS PTY LTD
FILE NO: 221/2015
DELIVERED ON: 30 July 2015
HEARING DATES: 20, 23 July 2015
JUDGMENT OF: Porter J
CATCHWORDS:
Contracts – Building, engineering and related contracts – Remuneration – Statutory regulation of entitlement to and recovery of progress payments – Adjudication under Building and Construction Industry Security of Payment Act 2009 – Registration of adjudication as judgment – Fruitless execution on judgment – Proprietor seeking relief in the form of certiorari to quash adjudication determination – No proceedings to set aside judgment – Statutory requirement for payment into court of adjudicated amount not applicable – Grant of stay of principal proceedings pending payment into court of the unpaid part of the adjudicated amount – Inherent jurisdiction of the Court.
Aust Dig Contracts [279.5]
REPRESENTATION:
Counsel:
Prosecutor: C J Gunson
Second Respondent: B J Cassidy
Solicitors:
Prosecutor: Murdoch Clarke
Second Respondent: Page Seager
Judgment Number: [2015] TASSC 33
Number of paragraphs: 38
Serial No 33/2015
File No 221/2015
R v SCOTT PETTERSON; ex parte FENSHAW PTY LTD
REASONS FOR JUDGMENT PORTER J
30 July 2015
Introduction
The prosecutor, Fenshaw Pty Ltd, is seeking relief under Pt 26 of the Supreme Court Rules 2000 in the form of certiorari, or other relief, in respect of a determination of an adjudicator under Pt 5 of the Building and Construction Industry Security of Payment Act 2009 (the Act). The object of the Act is stated in s 3 as being:
"… to ensure that any person who undertakes to carry out building work or construction work (or who undertakes to supply building or construction-related goods and services) under a building or construction contract, including such a contract that relates to a residential structure, is entitled to receive, and is able to recover, progress payments in relation to the work or goods and services."
Part 5 of the Act allows for an application to have a claim for a progress payment adjudicated. Section 24 requires an adjudicator to determine an adjudication application as soon as practicable, and in any case, within 10 business days after the date on which an adjudicator receives the response to the claim made in a payment schedule, and any submissions relating to it. Section 25 provides that an adjudicator is to determine an adjudication application by determining whether or not all or part of a progress payment is to be paid by the respondent to the claimant, the amount of the payment, the date on which it became or becomes payable, and the rate of interest payable on the amount. Section 26 provides for the issue of an adjudication certificate setting out the names of the parties and the amount due.
On 17 February 2015 the adjudicator, Mr Pettersson, determined that the prosecutor was obliged to pay to the respondent, Water Industry Solutions Pty Ltd, an amount of $617,958.74 which fell due on 2 January 2015. That amount was to carry statutory interest under the Supreme Court Civil Procedure Act 1932. On 24 February 2015 the prosecutor commenced proceedings in the Federal Court to determine the contractual rights between the parties. As I understand it, the subject matters of the adjudication are subsumed within those proceedings.
Section 27(5) of the Act relevantly provides:
"(5) If the respondent commences proceedings to have the judgment set aside, the respondent —
(a) is not, in those proceedings, entitled —
(i)…; or
(ii)…; or
(iii)to challenge the adjudicator's determination; and
(b) must pay into the court as security the unpaid part of the adjudicated amount, pending the final determination of those proceedings."
As enabled by s 27(1) of the Act, on 2 March 2015 the respondent filed an adjudication certificate as a judgment in this Court against the prosecutor for $633,244.16. That was the amount then due. The respondent has unsuccessfully attempted execution of the judgment. The evidence shows that the prosecutor owns significant assets, but asserts that it holds those interests as trustee for a unit trust.
On 20 April 2015, the prosecutor obtained a general order to show cause in respect of the adjudicator's determination. (The originating application also sought declaratory relief, but it does not seem that this aspect is being pursued.) The grounds of the order to show cause allege:
· that the adjudicator lacked jurisdiction to determine the application because the respondent's claim did not comply with s 17(2)(d) of the Act in that it did not properly identify the prescribed matters[1];
· a denial of natural justice in that the failure to comply with s 17(2)(d) meant that the respondent was precluded from making a meaningful response as provided for in s 23 of the Act;
· that the adjudicator failed to exercise his jurisdiction in that he failed to determine the adjudication application in accordance with the Act by failing to determine whether the construction work was performed and its value, only determining the objections made by the prosecutor, and simply adopting the amounts claimed by the respondent;
· that the adjudicator exceeded his jurisdiction by purporting to determine the terms and scope of relevant provisions of the contract between the parties;
· that the adjudicator erred in law by determining that the contract, being a 'cost plus' contract, enabled the respondent to charge rates at rates other than actual costs incurred.
[1] 17 Claims for payment may be made
The order to show cause was returnable on 20 July 2015. By an interlocutory application listed the same time as the return of the order to show cause, the respondent sought a stay of the hearing and determination of the order to show cause until the amount due under the judgment is paid into Court or paid to the respondent. On 23 July 2015, I made an order that the hearing and determination of the general order to show cause be stayed until the prosecutor pays into Court the sum of $625,898.60. I said I would later publish reasons. Those reasons follow.
The Act
It is not necessary to further examine the actual operation of the Act[2], but it is worthwhile to consider its purpose. Similar legislation to the Act exists in other jurisdictions in Australia. The objectives of that legislation and the character of adjudication proceedings have been considered and commented on in a number of cases; see for instance, Hickory Developments Pty Ltd v Schiavello Pty Ltd [2009] VSC 156 at [36]-[39], R J Neller Building Pty Ltd v Ainsworth [2009] 1 Qd R 390 at [40], and Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 at [207]-[210]. In short, the concept of "pay now - argue later" is given full effect for reasons of maintaining solvency in the industry. In Amflo Constructions Pty Ltd v Jefferies [2003] NSWSC 856, Campbell J said at [25] (omitting section references):
"… The concern of the Act is with maintaining the cash flow of claimants, by enabling them to recover quickly amounts which the adjudication process says they are entitled to. It is possible for the person who pays the amount of money which an adjudication has found due to seek to reclaim that money, in court proceedings which decide what the ultimate legal rights of the parties are. An evident purpose of the Act is that, if there is to be such litigation, it will start from a position where the claimant has been paid the amount which the adjudication process has decided should be paid."
[2] The operation of the Act is usefully summarised by Blow J (as he then was) in Skilltech Consulting Services Pty Ltd v Bold Vision Pty Ltd (2013) 22 Tas R 147 at 151-152 [5].
In the Hickory Developments case, Vickery J, at [45]-[48], made some further relevant observations. His Honour accepted that the legislation places the claimant in a privileged position in the sense that no rights were acquired beyond contractual rights. His Honour said that freedom from excessive legal formality was another "central aspiration", the provisions demonstrating "a pragmatic concern to provide a dispute resolution process not bedevilled with unnecessary technicality". That part of the legislation devoted to the adjudication of disputes, had as a hallmark, the limited nature of specified procedural requirements. This provided a high degree of flexibility in the management of adjudications.
Discussion
It is well established that relief in the nature of prerogative relief is available in respect of adjudications under this form of legislation: see Chase Oyster Bar Pty Ltd (above), and in this State Skilltech Consulting Services Pty Ltd v Bold Vision Pty Ltd (2013) 22 Tas R 147. The respondent accepted that the prosecutor's proceedings were not proceedings to have the judgment set aside within the strict meaning of the Act, and that accordingly, s 27(5)(b) did not apply. In seeking a stay, the respondent relied on s 10(5)(a) of the Supreme Court Civil Procedure Act[3], and the inherent power of the Court. The respondent submitted that the prosecutor's "application is analogous to and identical in effect to proceedings to set aside the judgment". The respondent says that the prosecutor is deliberately avoiding the purpose of the Act, and submits that the spirit of the Act should be applied.
[3] The section provides that nothing in that Act disables the Court or any judge from directing a stay of proceedings in any cause or matter pending if it is thought fit.
It is not strictly correct to say that the prosecutor's application is identical in effect to proceedings to set aside the judgment. In its originating application, the prosecutor does not seek a stay of judgment enforcement proceedings as a final order. An interlocutory stay was sought, but not pursued in the hearing for the order to show cause. However, the present proceedings may well be, of course, a precursor to an application to set aside the judgment. Orders of this Court by which the adjudication has been quashed or was declared to be invalid would no doubt form a proper basis for such an application.
The respondent did not submit that the prosecutor's proceedings were an abuse of process. That seems to be a reasonable position to have taken. Given the entitlement to relief in the nature of prerogative relief, it might be difficult to argue, at least as a broad proposition, that such proceedings are an abuse of process in the ordinary sense in which that term is used; that is, proceedings for an ulterior or extraneous purpose, or for some collateral advantage beyond what the law offers: Williams v Spautz (1992) 174 CLR 509.
Although not the subject of any real debate in this case, the question of the scope for an application to set aside a judgment which does not challenge the determination within the meaning of s 27(5)(a)(iii) does have some relevance. The significance of the extent to which a party might be avoiding the operation of s 27(5)(b), intentionally or by coincidence, may depend on whether that party could pursue proceedings to set aside the judgment based on grounds which would not amount to a challenge to the determination.
The starting point is the proposition that relief in the form of prerogative relief in respect of an adjudication is available for jurisdictional error of law: Chase Oyster Bar, Clyde Bergmann v Varley Power [2011] NSWSC 1039 at [39], and Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd [2012] QCA 276 per Phillipides J (Holmes and White JJA agreeing) at [95]-[105]. As Einstein J said in 2006 in rejecting a submission that the equivalent of s 27(5) should be read as encompassing any proceedings that have the substantial effect of challenging, undermining or limiting the enforcement of a judgment:
"… [N]otwithstanding the many statements by Courts as to the legislative intention of the Act, there seems to be to be a real question as to whether any of those statements travels into the minutiae of attempting to exhaustively deal with the precise mischief which the words 'proceedings to have the judgment set aside' in section [27(5)] was intended to remedy."
The situation seems to have remained unchanged. In Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421, the court held that relief in the nature of certiorari was not available to quash an adjudicator's determination. It was held that a void determination could be dealt with by declaratory or injunctive relief, and that there were "essential requirements" for the validity of the determination. That decision was not followed in the Chase Oyster Bar case which was decided after the High Court decision in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.
However the following observations of Hodgson JA in Brodyn would seem to remain unaffected. At 437 [41]-[42] his Honour noted that an order quashing a determination or declaring it to be void could support the setting aside of the judgment and would not involve a challenge to the determination. Further, a judgment may be set aside on the ground that there was no determination, if for instance it was a forgery, or if for some other reason recognised in law, the determination was not one within the meaning of the Act.
Looking at the situation from the opposite view, Basten JA in Chase Oyster Bar said at 414-415 [87]-[88], that it was at least arguable that the constraint imposed by the NSW equivalent of s 27(5) was limited to the matters which the adjudicator was statutorily required to determine as set out in s 25(2) of the Tasmanian Act[4]. His Honour went on to say that given the objects of the Act, the term "challenge" should not be given any narrow compass; "Nevertheless, its primary purpose would seem to be a challenge to the correctness of the adjudicator's determination, in terms of the assessment made of the factors set out in s 2[5](1). It is not language which is out to protect the legal effect of the determination where the power to adjudicate was not properly engaged."
[4] 25 Determination of adjudication applicationOn those bases, it might be said that the prosecutor's grounds in the order to show cause which allege that there was no determination in law, would afford grounds to have the judgment set aside. That would not amount to a challenge to the determination in the sense explained by Basten JA. Bearing in mind that relief in the form of prerogative relief may be accompanied by injunctive relief, or is an obvious precursor to setting aside the judgment, any overlap between what is permitted by s 27(5)(a)(iii) and extraneous relief would serve to sharpen the focus on the inherent power to grant a stay when the latter procedure is adopted. If the scope for such extraneous relief is very wide because what is permitted by s 27(5)(a)(iii) is quite confined, it would be appropriate to have regard to the spirit of the legislation as manifested in s 27(5)(b). The broader the meaning of a "challenge" to the "determination", the sharper the focus on the inherent power to stay, when relief in the form of prerogative relief, as I have described it, is pursued.
Whether or not these proceedings are brought with the specific intention to circumvent that provision does not need to be decided. The reality is that s 27(5)(b) does not apply. The discretion to grant a stay in the Court's inherent jurisdiction remains an unfettered one. As I will demonstrate however, considerations of the degree of proximity of proceedings to proceedings to set aside a judgment under the Act, and the consequences which flow from such action, are relevant factors in the exercise of the discretion.
The exercise of the discretion
The respondent referred to a number of cases in New South Wales in which the court's inherent jurisdiction to grant a stay was invoked: Tombleson v Dancorell Constructions Pty Limited [2007] NSWSC 1169, Filadelfia Projects Pty Ltd v EntirITy Business Services Pty Ltd [2010] NSWSC 473, Lanmac (NSW-ACT) Pty Ltd v Wallace [2010] NSWSC 976 and Nazero Group Pty Ltd v Top Quality Constructions Pty Ltd [2015] NSWSC 232. In each case, with the exception of Tombleson, judgment had not been entered. In Tombleson, in addition to seeking relief in respect of the adjudication, the plaintiff proprietor was seeking injunctive relief in relation to execution of the judgment.
Bergin J (as her Honour then was) said:
"18 A plaintiff against whom a judgment has been entered who brings proceedings seeking to prevent a party from relying on that judgment without seeking to set aside the judgment, knows that s 25(4) of the Act requiring security will not be triggered. However, the Court is not only cautious to ensure justice between the parties, but also to ensure that the legislation under which this application is brought is not circumvented.
19 The plaintiff is attempting to prevent the defendant from enforcing the judgment by injunction rather than seeking to set aside the judgment. Pleadings may be analysed to see whether it is an abuse to seek those orders whilst not seeking to set aside judgment. If the Court is satisfied that such an application is for the purpose of getting around or circumventing the provisions of the Act then an order may be made staying the proceedings on the condition that such stay will remain unless money is paid into Court. Such an approach may diminish the drafting of innovative pleadings to ensure that s 25(4) is not triggered to obtain the benefit of proceedings in Court whilst the contractor loses the benefit of the Act."
Her Honour was satisfied that the plaintiff's pleading sought to avoid the triggering of the equivalent of s 27(5), and was satisfied that to ensure a just resolution of the proceedings, a stay should be ordered pending payment into court or a bank guarantee. Plainly enough, the critical factors were that injunctive relief was being sought in respect of enforcement of the judgment, and there was a manifest intention to avoid the operation of the Act.
As I have noted, in this case the prosecutor, in the application for an order to show cause, sought a stay of execution on the judgment but did not pursue the remedy. The issue has some relevance though because in an affidavit in support of the application filed on behalf of the prosecutor, its solicitor stated its willingness to pay into Court up to the full amount of the claim as a condition of the stay.
In the Filadelfia case, in proceedings brought by the plaintiff proprietor against the adjudicator and the builder, the plaintiff sought an interlocutory injunction restraining enforcement of the adjudicator's determination. The plaintiff offered an undertaking not to dispose of its assets or otherwise to charge or deal with them to reduce the net amount available below an amount sufficient to secure the adjudicated amount. McDougall J at [11] said:
"11 In the ordinary way injunctive relief would be granted on condition that the amount in dispute, including the cost of the adjudication and some allowance for interest, be paid into Court pending a final resolution of the dispute. That is generally done firstly where s 25(4) of the Act applies, simply because that is a requirement of the section. Where (as here) s 25(4) does not apply in terms (and it does not apply in terms because there has been no adjudication certificate, and hence no judgment for a debt) the Court nonetheless, taking into account the clear objects of the Act and its underlying policy, generally orders payment into Court by analogy with s 25(4)."
The Lanmac case involved an application by the proprietor for injunctive relief in respect of the necessary steps leading to and including the filing of the adjudication certificate as a judgment. The respondent sought, and was granted, a stay of the principal proceedings, pending payment into court of the determined amounts or the provision of a bank guarantee in terms acceptable to the court. Einstein J determined the application by reference to the observation of Bergin J in Tombleson which I have set out above.
In the Nazero case the plaintiff proprietor sought declaratory relief in respect of the adjudication and injunctive relief as to its enforcement. The plaintiff argued that rather than there being policy reasons requiring a plaintiff to put up the money pending the proceedings where the equivalent of s 27(5)(b) of the Act did not apply, there were policy reasons against it, particularly following the decision in Chase Oyster Bar. As in this case, the plaintiff originally sought an interlocutory injunction restraining enforcement but that was not pursued. The defendant builder advised the court that it did not intend filing the certificate as a judgment pending final determination of the proceedings. At [27] Hammerschlag J noted that an order that the plaintiff pay the unpaid adjudicated amount pending final determination was interlocutory and procedural, and would not finally determine any party's rights. "The Court has power to make such orders as part of its inherent power to control its own processes."
At [42]–[43], his Honour continued:
"The policy of the Act, as reflected in s 25(4)(b), is that a claimant is to be given protection of payment into Court when a respondent seeks, whether by injunction or otherwise, to inhibit the claimant's enforcement of an adjudication in its favour. Pendente lite, Top Quality is being held out of payment, with the risk attendant on delay, notwithstanding the statutory obligation on Nazero to pay. It is open to Top Quality to file the adjudication certificate, in which event Nazero would have little option but to seek to have the judgment set aside to protect its position, in which event, s 25(4)(b) of the Act would mandate payment into Court. Here, by happenstance, the section does not apply because the further step has not yet occurred. Top Quality would have to take that step to enforce its statutory right to payment. The only difference is that these proceedings have intervened. The policy of the Act is not served by removing Top Quality's protection pending determination of Nazero's challenge even though s 25(4)(b) of the Act does not apply in terms.
The present position might also be thought to be a close analogue to injunctive proceedings where, pending final determination, Top Quality is practically being held out of its payment. Were it an actual injunction, the usual undertaking as to damages would have to be given." [My emphasis]
I observe that although the judgment had not been filed in that case, the judgment in the present case has been filed, but execution has been unproductive.
The prosecutor relied on two authorities in support of its resistance. The first is Surfabear Pty Ltd v GJ Drainage and Concrete Construction Pty Ltd [2010] 2 Qd R 366. The relief sought in respect of the adjudication was declaratory and injunctive in nature. As in this case, judgment had been entered but an enforcement warrant was returned wholly unsatisfied. At 371 [42], Martin J said that while the objective of the legislation in ensuring the person entitled to progress payments is able to receive such payments promptly is well established, the objective does not override the plain and ordinary meaning of the provisions. His Honour noted that the section made express reference to "proceedings to have the judgment set aside when requiring unpaid adjudicated amounts to be paid into court". Other types of proceeding, such as the application made in this case, do not fall within the ambit of that section. His Honour held that no payment into court was required.
The prosecutor submitted that this case represented the starting point of the debate, but I did not find it to be of any real assistance. The argument before his Honour seems to have been simply that the proceedings amounted to proceedings to set aside the judgment within the meaning of the legislation. There is no suggestion that the inherent jurisdiction of the court was invoked.
The next case is Denham Constructions Project 810 Pty Ltd v Smithies [2014] ACTSC 169. In that case, in two sets of proceedings, the proprietor sought orders quashing determinations of an adjudicator. In each proceeding the defendant builder sought to have the proceedings dismissed or stayed. One of the adjudications had been filed as a judgment. Master Mossop (as the position was then described) was required to decide three issues. As his Honour addressed them, it is the second and third of those issues which are relevant. The second issue was whether the pursuit of proceedings for prerogative relief to quash a decision of an adjudicator constituted an abuse of process in circumstances where there was no application to have the judgment set aside. The third issue was whether the proceedings should be stayed.
The defendant submitted that the court should conclude that the predominant purpose of the proceedings was to impugn the judgment in a way calculated to circumvent the operation of the equivalent of s 27(5), and that such purpose was an abuse of process. Mossop M rejected the submissions and refused to order a stay. He said:
"49 In the present case the most that can be said is that Denham 810 is seeking relief which is a step along the way to seeking the relief which would ultimately be necessary if it was successful. I am not satisfied that such a course involves an abuse of process. In my view it is not correct to categorise what the plaintiff is doing as using the process of the courts to achieve some foreign, improper or ulterior object.
50 Unlike the decision in Tombelson, the plaintiff in this case does not seek any injunction restraining the enforcement of the judgment that has been entered pursuant to the provisions of the SOP Act. As a consequence even if significant weight was to be given to the legislative scheme, the proceedings brought by the plaintiff are not, at this stage, inconsistent with that scheme because they leave open the capacity of [the defendant] to enforce the judgment pursuant to the provisions of the SOP Act."
His Honour went on to note an argument by the plaintiff that it was not appropriate to grant a stay because it was exercising its entrenched right to bring proceedings for prerogative relief in relation to a decision of a statutory decision-maker which, it alleged, exceeded the jurisdiction under the relevant Act. Mossop M said that the court should be slow to characterise the invocation of the entrenched judicial review jurisdiction as an abuse of process by reason of an implication to be drawn from a statutory provision that was not directly applicable. At [52], he continued:
"In the present case, having regard to the fact that, in circumstances where the plaintiff has not sought to restrain the enforcement of the judgment created by s 27, there are alternative grounds upon which the present application can be disposed of, it is not necessary to finally resolve the more fundamental question about the relationship between statutory provisions such as 27(4) and the entrenched supervisory jurisdiction of this Court."
The prosecutor's reliance on Denham seemed to be that it is a good illustration of a similar case in which a stay was not granted. It is true that the question of abuse of process, in the end, occupied the same position as it does in this case. With respect however, I did not find the case to be of any real assistance in terms of the applicable principles, and there are points of distinction. First, although no stay of execution was sought in this case, execution of the judgment has been attempted and such attempts were fruitless. The prosecutor appears not to be the beneficial owner of any significant assets. The second point of distinction is that Master Mossop seems to have taken the view that there being no abuse of process involved, he did not need to consider the relationship between the s 27(5)(b) equivalent "and the entrenched supervisory jurisdiction" of the court.
I have already discussed what I see to be the proper broad view to be taken of proceedings of this kind in relation to an adjudication under the Act, and the nature of some of the grounds of the order to show cause. In this regard, I respectfully adopt the approach of Hammerschlag J in the Nazero case. An additional factor relevant to the exercise of the discretion is the failure of the respondent to obtain satisfaction of its judgment, the prosecutor's apparent financial situation, and the offer which was made of a payment into Court in support of its own interlocutory application for an injunction which was not pursued. On 4 June 2015, the respondent wrote to the prosecutor foreshadowing this application for a stay if the judgment amount then outstanding was not paid into Court. The prosecutor did not respond.
That leads me to the next issue and one which the prosecutor asserted was a "compelling" reason for the refusal of a stay. It was submitted that I should not exercise the discretion in the respondent's favour because of the delay in making the stay application. The order to show cause was made on 20 April 2015, at which time or shortly after, the respondent knew of it. This interlocutory application was filed on 14 July 2015, less than a week before the date for the hearing of the substantive proceedings. The respondent's letter was, as I have noted, dated 4 June 2015. The prosecutor pointed out that this application was filed on the same day as its outline of submissions in the substantive proceedings was filed and served. The prosecutor argued that the respondent had allowed "very significant" costs to be incurred before making the application, and the respondent had made no suggestion that it ought to pay costs thrown away. The hearing date of 20 July was notified to the parties about three months earlier.
I accept that ordering a stay is a step not lightly taken. I have mentioned what I saw to be relevant factors. As to the delay, it would have been preferable if the application had been made earlier, but I did not regard the delay as disentitling the respondent from the relief it sought. Whether or not the costs incurred in preparation are thrown away remains to be seen.
Having decided that a stay was appropriate, I sought to apply the spirit of the Act as closely as possible in relation to the amount to be paid in. I ordered that the proceedings be stayed pending the payment into Court of the amount owing under the adjudication as it stood at the date of the commencement of the prosecutor's proceedings.
(2) A payment claim must —
…
(d)identify the building work or construction work, or building or construction-related goods and services, to which the progress payment relates, in sufficient detail to enable the person on whom it is served to assess the claim.
…
(2) In determining an adjudication application, an adjudicator is to consider only the following matters:
(a)the provisions of this Act;
(b)the provisions of the building or construction contract to which the application relates;
(c)the payment claim to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the claimant in support of the claim;
(d)the payment schedule, if any, to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the respondent in support of the schedule;
(e)the results of any inspection carried out by the adjudicator of any matter to which the claim relates.