16 Mr Kalyk put the following propositions:
a under s 17(1) of the Act the first defendant was only entitled to make an adjudication application if the plaintiff had failed to provide a payment schedule in response to the payment claim (that is progress claim number 22) within 10 business days of its date;
b the first defendant could only enliven the procedures in s 17(2)(b) of the Act if there had been no such payment schedule provided as contemplated by s 17(1)(b). More than 10 days elapsed after receipt of the payment schedule, being progress claim 22, before an adjudication application was sought to be made. Therefore it was no longer open for one to be made; and
c in the circumstances an essential pre-condition for the existence of the adjudicator's jurisdiction to make a determination had not been met and the adjudicator was without jurisdiction to do so: Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421; Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 1143.
17 Mr Rudge accepted that non-service of a payment schedule was a basic requirement under s 17(2)(b) of the Act and that the section only applied if there had been a failure by the "respondent" there referred to, to provide such a schedule within the time allowed by the Act. He accepted that if the plaintiff had (by virtue of the payment claim of 24 September 2007) provided a payment schedule the adjudicator here would not have jurisdiction.
18 However, he put that:
a whether the 24 September 2007 document was a payment schedule was a matter in dispute between the parties;
b the question whether it was or was not involved a dispute of fact; and
c on established authority the existence or otherwise of an essential pre-condition for jurisdiction on the part of a adjudicator is a matter for the adjudicator and not the Court.
19 He cited in support of his submissions the decision of McDougall J in Australian Remediation Services Pty Ltd v Earth Tech Engineering Pty Ltd [2005] NSWSC 362 and the judgment of Palmer J in Lifestyle Retirement Projects No 2 Pty Ltd v Parisi Homes Pty Ltd (2005) NSWSC 411.
20 Both Brodyn Pty Ltd t/as Time Cost and Quality v Davenport and Transgrid v Siemens Ltd (2004) 61 NSWLR 521 at 539 have established that an adjudicator's determination is reviewable for jurisdictional error where the determination is not a determination within the meaning of the Act because of non-satisfaction of some pre-condition which the Act makes essential for the existence of such a determination.
21 It has been held that the existence or otherwise of essential pre-conditions to a valid claim, as well as determination of the parameters of the payment claim, are matters for the adjudicator not for objective determination by a court: Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9; Downer Construction (Australia) Pty Ltd v Energy Australia [2007] NSWCA 49.
22 In Lifestyle Retirement Projects No 2 Pty Ltd v Parisi Homes Pty Ltd Palmer J considered that disputes whether a payment claim had been served within the time prescribed under the Act and whether a payment schedule had been served within the time prescribed by the Act were matters properly for the determination of an adjudicator. The present situation is to my mind analogous to that being considered there by his Honour.
23 The existence of a payment claim under the Act is clearly a jurisdictional requirement for an adjudicator to validly exercise the jurisdiction conferred under the Act. Palmer J, following McDougall J in Australian Remediation Services Pty Ltd v Earth Tech Engineering Pty Ltd, held that whether such a fact existed was a matter within the competence of the adjudicator to determine.
24 Mr Kalyk cited the decision of Bergin J in Kell & Rigby Pty Ltd v Guardian International Properties Pty Ltd [2007] NSWSC 554 where her Honour held that s 17(2) of the Act imposed a mandatory condition and that in the absence of fulfilment of it the adjudication application upon which it depended was a nullity. The situation there is in my view distinguishable from that here. There does not appear to have been any dispute before her Honour that the mandatory condition there had not been complied with.
25 In this case the defendant disputes that the 24 September 2007 document purporting to be a payment schedule is a payment schedule because, and only because, Simmat did not have authority to deliver it (or for that matter make it) on behalf of the plaintiff. It submits that this is a matter of fact. It no doubt includes matters of fact although the ambit of factual dispute is very narrow.
26 It also involves a question of law. However, in my view, the question here is a matter for the adjudicator to determine. If he fails to comply with a basic requirement of the Act in determining it or to afford natural justice or makes no bona fide attempt to determine it, the Court will intervene.
27 Mr Kalyk submitted that a consideration favouring the conclusion for which he contended, namely that the Court should determine here and now the factual and legal question of Simmat's authority, is to be derived from the provisions of s 15 of the Act which provides as follows:
"(1) This section applies if the respondent:
(a) becomes liable to pay the claimed amount to the claimant under section 14(4) as a consequence of having failed to provide a payment schedule to the claimant within the time allowed by that section, and
(b) fails to pay the whole or any part of the claimed amount on or before the due date for the progress payment to which the payment claim relates.
(2) In those circumstances, the claimant:
(a) may:
(i) recover the unpaid portion of the claimed amount from the respondent, as a debt due to the claimant in any court of competent jurisdiction, or....".
28 Support was to be derived from this provision, it was put, in that if the claimant exercised the option to move a court of competent jurisdiction for judgment in debt, the question (if there was a dispute) whether a payment schedule had been provided would be a matter of fact inevitably to be determined by the court. That may be so, but that is when the claimant opts for that procedure.
29 Here the claimant has opted for the adjudication procedure.
30 It is not appropriate (albeit that the matter was conducted on a final basis), for me to make any findings as to whether Simmat was authorised or not authorised on behalf of the plaintiff to deliver or make the payment schedule which is in dispute.
31 I consider, however, that it is appropriate to record the contentions which were put by Mr Rudge in that regard and to express a view on the law without intruding on the adjudicator's function to decide the matter for himself on the facts.