Zhang v Saiyu Construction Pty Ltd

In the matter of *Zhang v Saiyu Construction Pty Ltd*, the applicant, Mr. Zhang, sought to enforce an adjudication decision made under the *Building and Construction Industry Security of Payment Act 2002* (NSW) (the Act). The respondent, Saiyu Construction Pty Ltd, sought to set aside the adjudication decision on the grounds that it was void for jurisdictional error. The application was heard in the District Court of New South Wales before Judge Altobelli.

The central legal issue before the Court was whether the adjudicator had committed a jurisdictional error by failing to consider a crucial aspect of the respondent's payment claim. Specifically, the Court had to determine if the adjudicator’s decision was vitiated by a failure to consider the respondent’s assertion that the applicant had not provided a valid progress claim, which the respondent argued was a prerequisite for the adjudication process to commence.

Judge Altobelli reasoned that for an adjudication determination to be valid, the adjudicator must consider all relevant submissions made by the parties. In this instance, the respondent had raised a specific defence regarding the validity of the progress claim, which the adjudicator appeared to have overlooked or failed to adequately address in the reasons for the decision. The Court applied the principle that a failure to consider a substantive defence raised by a party can constitute a jurisdictional error, rendering the adjudication determination void.

Consequently, the Court found that the adjudicator had erred in law by failing to consider the respondent's defence concerning the validity of the progress claim. The adjudication decision was therefore set aside, and the respondent was not required to pay the amount determined by the adjudicator.