Vis Constructions Ltd v Cockburn

Vis Constructions Ltd brought an application for judicial review of an adjudication decision rendered by an adjudicator under the Building and Construction Industry Payments Act 2004. The primary issue was whether the adjudicator's decision was subject to the principles of natural justice, particularly procedural fairness. The applicant argued that the adjudicator's finding on the existence of a construction contract was made without proper notice to the applicant, denying it the opportunity to respond to the specific basis on which the contract's existence was determined.

The court was required to determine whether the adjudicator's decision was regulated by the rules of natural justice and if the adjudicator had jurisdiction to make the decision in question. Additionally, it was necessary to assess whether the adjudicator's decision on the existence of the contract was a jurisdictional error, as it was based on a ground not suggested by either party during the adjudication process. The court also considered whether the applicant's right to procedural fairness was violated by the adjudicator's unilateral determination of the contract's existence.

The court found that the adjudicator's decision was indeed subject to the principles of natural justice and that procedural fairness required the adjudicator to provide notice of the specific grounds on which the existence of the contract was determined. The adjudicator's unilateral finding on the existence of a contract, without providing the applicant with an opportunity to respond, constituted a denial of procedural fairness. Furthermore, the court determined that the adjudicator's decision on the existence of the contract was a jurisdictional error, as it was based on a ground not suggested by either party during the adjudication. The court concluded that the adjudication decision was void and restrained the respondent from further proceedings on the adjudication certificate.

The court declared the adjudication decision void, ordered the respondent to be permanently restrained from further proceedings on the adjudication certificate, and granted leave for the parties to make written submissions on costs.