Rhomberg Rail Australia Pty Ltd v Concrete Evidence Pty Ltd

Rhomberg Rail Australia Pty Ltd sought to enforce an adjudicator's determination in favour of $2,332,500 against Concrete Evidence Pty Ltd. The dispute arose from a building and construction contract, and the determination was made under section 22 of the Building and Construction Industry Security of Payment Act 1999 (NSW). The primary issues before the court were whether the determination was void due to jurisdictional error, specifically whether the adjudicator failed to afford natural justice and procedural fairness, and if the denial of procedural fairness was substantial. Additionally, the court considered whether Rhomberg Rail Australia was entitled to recover in respect of the unaffected part of the claim.

The court examined the adjudicator's process and found that there was a failure to provide procedural fairness, which amounted to a jurisdictional error. The adjudicator did not give Concrete Evidence Pty Ltd an opportunity to respond to a specific claim or to a calculation method used by Rhomberg Rail Australia. The court held that this procedural error was substantial and resulted in a denial of natural justice and procedural fairness. Consequently, the determination was deemed void.

As the determination was void, Rhomberg Rail Australia was not entitled to enforce it. The court did not find it necessary to address whether Rhomberg Rail Australia could recover in respect of the unaffected part of the claim, as the primary issue of procedural fairness had already been determined. The court's decision effectively precluded Rhomberg Rail Australia from enforcing the adjudicator's determination and left the matter open for a new adjudication process that adhered to proper procedural fairness.