SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Creative Building Services Pty Ltd v TIO Air Conditioning Pty Ltd

[2016] ACTSC 367

JUDICIAL REVIEW - Adjudication decision - Payment claim made under Building and Construction Industry (Security of Payment) Act 2009 (ACT) - Amount awarded substantially greater than amount claimed in payment claim - Whether determination of amount claimed an error within jurisdiction - Whether decision of adjudicator involved jurisdictional error -Whether amount claimed in a payment claim is a jurisdictional fact

Building and Construction Industry (Security of Payment) Act 2009 (ACT), ss 15, 16, 17(2), 18(2), 19, 22(4), 24

Court Procedures Rules 2006 (ACT), r 3557

Evidence Act 2011 (ACT), ss 56, 135(c)

Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297

BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd (No 2) [2013] QSC 67

Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning [1999] FCA 262; (1999) 86 FCR 266

Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority [2007] ACTSC 95; (2007) ACTSC 95

Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 78 NSWLR 393

Cressy v Miloriad (No 2) [2016] ACTSC 339

Enfield City v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135

Fernandes Constructions v Tahmoor Coal (trading as Centennial Coal) [2007] NSWSC 381

Gedeon v New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120

James Trowse Constructions Pty Ltd v ASAP Plasterers Pty Ltd [2011] QSC 145

Kembla Coal & Coke Pty Ltd v Select Civil Pty Ltd [2004] NSWSC 628

Minister for Immigration v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140

Oppedisano v Micos Aluminium Systems [2012] NSWSC 53

Pines Living Pty Ltd v O'Brien & Walton Constructions Pty Ltd [2013] ACTSC 156

Woolworths Limited v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707

Creative Building Services Pty Ltd (ACN 070 303 892) (Plaintiff)

TIO Air Conditioning Pty Ltd (ACN 165 149 486) (First Defendant)

1. The plaintiff has applied by originating application filed 11 November 2016 for an order setting aside or declaring void the decision of the second defendant, an adjudicator, under the Building and Construction Industry (Security of Payment) Act 2009 (ACT) (SOP Act) made on 30 March 2016. It has also sought an injunction restraining the first defendant from obtaining an adjudication certificate or filing such a certificate as a judgment. If a judgment has been obtained then it seeks an order that the judgment be set aside.

(a) On 3 February 2014 the plaintiff entered into a subcontract agreement with the first defendant (TIO) for the installation of the air-conditioning units at a development known as LinQ Apartments.

(b) On 14 December 2015 TIO gave the plaintiff a payment claim. The alternative interpretations of the payment claim are that it claimed either:

1. $41,710.67;
2. the total of all amounts previously claimed by TIO but not paid by the plaintiff, namely, $300,822.84; or
3. the total of the above two amounts, namely, $342,533.51.

(c) The plaintiff did not provide a payment schedule in response to that payment claim.

(d) On 10 February 2016 TIO issued a notice under s 19(2) of the SOP Act notifying the plaintiff that it intended to apply for adjudication of the payment claim.

(e) On 2 March 2016 TIO lodged an adjudication application as a result of which the adjudicator accepted his appointment.

(f) On 30 March 2016 the adjudicator made his decision determining that the plaintiff was liable to pay TIO $143,293.27.

(g) The adjudicator's fees were only paid in October 2016 and the adjudication decision only provided to the plaintiff on 14 October 2016.

3. The essential issues raised by the application are:

(a) What was the amount claimed in the payment claim?

(b) Did the decision involve jurisdictional error because it awarded an amount of $143,293.27 if the payment claim only claimed $41,710.67?

4. The basis for exercising the supervisory jurisdiction of the Court in relation to an adjudication decision is set out in Pines Living Pty Ltd v O'Brien & Walton Constructions Pty Ltd [2013] ACTSC 156 at [26]- [28].

5. The plaintiff required an extension of time in which to bring these proceedings because r 3557(2) of the Court Procedures Rules 2006 (ACT) (CPR) provides that an application for prerogative relief must be filed no later than 60 days after "the day on which the grounds for the grant of relief sought first arose". In this case the adjudication decision was made on 30 March 2016. However, because the adjudication fees were not paid until October 2016, the adjudicator did not release his decision to the parties and hence the plaintiff did not know the outcome of the adjudication until it received a copy of the adjudication decision on 14 October 2016. The present proceedings were then commenced on 11 November 2016, 28 days after the content of the decision was first known to the plaintiff.

6. During the course of the hearing I indicated that I would grant an extension of time and that I would provide my reasons at the time I gave my substantive decision. These are my reasons.

7. Rule 3557(4) provides that the Court may extend the time in which an application may be filed in "special circumstances". That expression means that the plaintiff must establish that the circumstances were sufficiently out of the ordinary to warrant a departure from the default rule: Cressy v Miloriad (No 2) [2016] ACTSC 339 at [48]- [49]. In my view, the present circumstances constituted "special circumstances" because the plaintiff was unaware of the decision or the adjudicator's reasons until 14 October 2016. That is clearly a circumstance out of the ordinary. If the 60-day time limit was applied then the plaintiff's entitlement to commence proceedings would have expired prior to it having knowledge of the decision or its content.

8. I did not accept the first defendant's submission that because the plaintiff did not raise in correspondence in any objection to the scope of the claim referred to the adjudicator at the point where that occurred it was thereby prevented from raising the present issue. Although the submissions in support of the adjudication application claimed an amount in excess of $175,000 the plaintiff might reasonably have expected (in the light of the payment claim to which I will refer below) that the adjudicator would have proceeded on the basis that the actual claim made was for $41,710.67.

9. Further, because it had not provided a payment schedule, the plaintiff was precluded from providing an adjudication response: SOP Act s 22(4). The fact that it might have taken steps outside the statutory process to attempt to ensure that TIO did not put forward an adjudication application which extended beyond the scope of its payment claim or that the adjudicator acted within jurisdiction is not sufficient to deny what would otherwise be an appropriate extension of time.

10. The plaintiff claimed that the amount claimed in a payment claim was a jurisdictional fact so that it amounted to jurisdictional error for the adjudicator to have determined that the progress claim amount was $143,293.27 when the payment claim had only been for $41,710.67.

11. The first defendant submitted that when the relevant documentation was considered as a whole, the payment claim related to the whole of the amounts unpaid in response to previous payment claims, namely, a total of $300,822.84. As a consequence, the amount awarded was clearly within the scope of the payment claim.

12. Next the defendant submitted that if there was any error on the part of the adjudicator then it was an error within jurisdiction. In other words the adjudicator had considered and determined the issue of the amount that was claimed and his decision did not involve any jurisdictional error just because the Court might come to a different view.

13. I deferred ruling on the admissibility of Tab 3 of Exhibit CR1 until I had heard the submissions of the parties. I do not admit those documents. They comprised 123 pages of correspondence between the parties to which no reference was made in submissions. I am not satisfied that they are relevant for the purposes of s 56 of the Evidence Act 2011 (ACT). If I am wrong in that conclusion, and they are relevant in some marginal way, then I reject the tender under s 135(c) because their probative value is substantially outweighed by the danger that the evidence might result in an undue waste of the Court's time.

What was the amount claimed in the payment claim?

14. The payment claim is invoice LQ00015 dated 14 December 2015. It was sent with an email which says "As we have not received confirmation of our previous email, I am reissuing the final progress claim." The document annexed was an Excel spreadsheet entitled LinQ-Progress Claim-Nov 2015.xlsx.

15. An earlier progress claim in almost identical form had been sent on 19 November 2015. That had been sent with an email which provided "Please find attached the progress claim for the remaining retention monies-12 months from handover is 30 November 2015." The only difference in the 14 December 2015 document was the change of the words "Progress Claim" to "Final Progress Claim" and a change in the date. There may have been some difficulty with the 14 December 2015 claim arising from the fact that no new reference date had passed since the 19 November 2015 claim had been sent: s 15(5) of the SOP Act. However, this was not an issue that was raised in the plaintiff's application.

16. The 14 December 2015 progress claim spreadsheet is on TIO letterhead and identifies the plaintiff. It identifies the claim date as 14 December 2015. It identifies itself as the "Final Progress Claim" and that its claim number is "13". I note at this point that previous progress claims had been numbered 1 to 12. It identifies the period covered as "13/12/2014-30/11/20". The balance of the date is cut-off on the document which is in evidence, but would have been visible in the electronic spreadsheet. I assume it is 2015. The period covered commences on the end date of the period covered by progress claim 12.

17. The body of the payment claim has four tables. The first table is headed "SUBCONTRACT WORKS SUMMARY". It is divided into columns headed left to right as follows:

18. In the first row under the above headings the amount identified under the last column is $41,710.67.

19. The next table is headed "VARIATION WORKS SUMMARY". It has column headings as follows:

20. At the end of the table, under the column headed "Variations- This Claim", the amount identified is zero.

21. On the final page there is a summary table headed "Payments Received to Date". The second column of this table shows amounts that had been claimed but not paid or not paid in full.

The contract sum is based on the Schedule of Rates

Payments Received to Date

(ex GST ex Retention Inc Variations Inc SGG levy)

*Denotes payments authorised by CBS but not yet to be paid to TioAir

**Denotes part payment of total claim made

***Denotes progress claim yet to be paid

22. The difference between the figures is $300,822.84. It is notable that in contrast to the previous two tables, there is no reference to any amount being included as part of "This Claim" and the payments referred to are past claims 1 to 12, not claim 13.

23. The critical entry on this page for present purposes is a table the elements of which were highlighted by shading in the left hand column and bottom row and appeared as follows:

This claim is made under the Building and Construction Industry Security of Payment Act 1999 (NSW) and the Building and Construction Industry Security of Payment Act 2009 (ACT)

24. It is significant that this table identifies the "TOTAL CLAIM" and contains the endorsement referring to the SOP Act.

25. The file in which it was contained, LinQ-Progress Claim-Nov 2015.xlsx, also contained each of the previous progress claims, namely, claims 1 to 12. However, relevantly, the progress claims in those documents retained their original dates and the unpaid amounts from those claims were not expressly included in the amount of progress claim 13.

26. A payment claim or purported payment claim under the SOP Act should be interpreted in the same way as commercial contracts are interpreted: Fernandes Constructions v Tahmoor Coal (trading as Centennial Coal) [2007] NSWSC 381 at [37]. This involves an objective approach and requires that the document be considered as a whole and in its commercial context.

27. Adopting this approach, the factors which might permit the claim to be characterised as a claim including all previous unpaid amounts are:

(a) the reference to "Final Progress Claim" - suggestive that it might have included previously unpaid amounts; and

(b) the identification of the difference between the payments received to date and the total amount claimed in previous payment claims.

28. However, in my view, having regard to the structure of the claim, it is clear that the amount claimed in this progress claim is that identified in the final table set out above. That is made apparent by the use of the words "Total Claim" and the fact that the reference to the SOP Act is within the box identifying the total claim as $41,710.67. It is consistent with the first two tables in the claim. There is no indication in the document that the difference between the amounts which had been received to date and the amounts claimed in previous payment claims were being repeated as part of progress claim 13. As a consequence I conclude that, objectively analysed, the payment claim was for an amount of $41,710.67.

The adjudication application and decision of the adjudicator

29. The whole of the adjudication application was not in evidence. The submissions included in the application under s 19(3)(g) were put into evidence, but not the body of the application itself. Those submissions appear to proceed on the basis that all amounts claimed to be outstanding under the contract could be claimed as a result of the terms of progress claim number 13. That is also consistent with the terms of the notice given under s 19(2) which asserted that the payment claim dated 14 December 2015 was $159,420.28 comprising $117,709.61 as well as the $41,701.67 of retention monies.

30. The adjudicator dealt with the scope of the claim at paragraphs [2], [26] and [27] as follows:

2. The Claimant submitted a Payment Claim to the Respondent on 14 December 2015. The sum sought in that claim is $175,362.31 (including GST). The claim had been originally issued as an invoice in November 2015. The document issued on 14 December 2015, was endorsed as a Payment Claim issued pursuant to the Building and Construction Industry Security of Payment Act 2009 (the Act) ...

...

Reasons

26. The Payment Claim is a comprehensive document reconciling the entire project works. It displays the adjusted contract value is $1,893,865.22 against a sum paid to date of $1,593,042.38. That is a difference between the sum said to be earned and the sum paid of $300,822.84. However, the adjudication application states the sum claimed is $175,362.31 (including GST). To further confusion created on the face of the document, the Payment Claim states the value of the total claim excluding GST is $41,710.67.

27. Given the sum claimed in the application is clearly less than the sum disclosed by the calculations of the Payment Claim that causes little or no issue. It is open for a party to claim a higher sum in a Payment Claim and reduce the sum actively pursued in the application. It is also apparent when the contract and documents exchanged are considered that the separate lower sum of $41,710.67 (excluding GST), represents the sum sought for release that has been held as security against completion of the work. The items pressed in the application are:

27.1. Retention $41,710.67

27.2. Synthetic Greenhouse Gas Levy $23,049.57

27.3. Labour to install additional head units $30,497.50

27.4. Removal of Negative Variation LQV017 ($28,560.00)

27.5. Rise and Fall in equipment cost $22,251.67.

31. It is notable that the analysis undertaken by the adjudicator was limited in that, although various amounts were referred to, it did not extend to identifying the amount of the claim as the sum of the amount expressly claimed in claim 13 ($41,710.67) and the amount outstanding in relation to previous claims ($300,822.84), namely, $342,533.51.

32. In the light of the adjudicator's reasons it is clear that he considered that:

(a) the scope of the payment claim involved an amount substantially greater than that pressed in the adjudication application;

(b) the amount to be awarded must be not greater than the amount claimed in the payment claim; and

(c) it was open to the claimant to pursue an amount less than that claimed in the payment claim.

33. The most relevant provisions of the SIP Act are as follows:

Part 4 Procedure for recovering progress payment

Division 4.1 Payment claim and payment schedule

15 Payment claim

(1) A person who is or who claims to be entitled to a progress payment under section 10 (1) (the claimant) may give a claim (a payment claim) to the person who, under the construction contract concerned, is or may be liable to make the payment (the respondent).

...

(2) A payment claim must -

(a) identify the construction work or related goods and services to which the progress payment relates; and

(b) state the amount of the progress payment that the claimant claims is payable (the claimed amount); and

(c) state that it is made under this Act.

...

(5) A claimant must not give more than 1 payment claim for each reference date under the construction contract.

(6) However, subsection (5) does not prevent the claimant from including in a payment claim an amount that has been the subject of a previous claim.

16 Payment schedule

(1) A respondent who is given a payment claim may reply to the claim by giving a schedule of proposed payment (a payment schedule) to the claimant.

...

(2) A payment schedule must -

(a) identify the payment claim to which it relates; and

(b) state the amount of the payment, if any, that the respondent proposes to make (the scheduled amount).

(3) If the scheduled amount is less than the claimed amount, the schedule must indicate -

(a) why the scheduled amount is less; and

(b) if the scheduled amount is less because the respondent is withholding payment for any reason - the respondent's reasons for withholding payment.

(4) The respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment to which the payment claim relates if -

(a) the claimant gives a payment claim to the respondent; and

(b) the respondent does not provide a payment schedule to the claimant within the earlier of -

(i) the time required by the relevant construction contract; or

(ii) 10 business days after the payment claim is given to the respondent.

17 Consequences of not paying claimant - no payment schedule

(1) This section applies if a respondent -

(a) becomes liable to pay a claimed amount to a claimant because the respondent failed to provide a payment schedule to the claimant within the time allowed under section 16 (4); 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) 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

(ii) make an adjudication application under section 19 (1) (b) in relation to the payment claim; and

(b) may give notice to the respondent of the claimant's intention, under section 29, to suspend;

(i) carrying out construction work under the construction contract; or

(ii) supplying related goods and services under the construction contract.

Note If a form is approved under s 47 for a notice, the form must be used.

(3) If the claimant starts a proceeding under subsection (2) (a) (i) -

(a) the court must not enter judgment in favour of the claimant unless the court is satisfied the circumstances mentioned in subsection (1) exist; and

(b) the respondent is not entitled -

(i) to bring a cross-claim against the claimant; or

(ii) to raise a defence in relation to matters arising under the construction contract.

1. Consequences of not paying claimant in accordance with payment schedule

(1) This section applies if -

(a) a claimant gives a payment claim to a respondent; and

(b) the respondent provides a payment schedule to the claimant within the earlier of -

(i) the time required by the relevant construction contract; or

(ii) 10 business days after the payment claim is given to the respondent; and

(c) the payment schedule states a scheduled amount that the respondent proposes to pay to the claimant; and

(d) the respondent fails to pay the whole or any part of the scheduled amount to the claimant on or before the due date for the progress payment to which the payment claim relates.

(2) 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

(ii) make an adjudication application under section 19 (1) (b) in relation to the payment claim; and

(b) may serve notice on the respondent of the claimant's intention, under section 29, to suspend -

(i) carrying out construction work under the construction contract; or

(ii) supplying related goods and services under the construction contract.

Note For how documents may be served, see the Legislation Act, pt 19.5.

(3) The notice must state that it is made under this Act.

Note If a form is approved under s 47 for a notice, the form must be used.

(4) If the claimant starts a proceeding under subsection (2) (a) (i) -

(a) the court must not enter judgment in favour of the claimant unless the court is satisfied the circumstances mentioned in subsection (1) exist; and

(b) the respondent is not entitled -

(i) to bring any cross-claim against the claimant; or

(ii) to raise any defence in relation to matters arising under the construction contract.

Division 4.2 Adjudication of disputes

19 Adjudication applications

(1) A claimant may apply to an authorised nominating authority, chosen by the claimant, for adjudication of a payment claim (an adjudication application) if -

(a) the respondent provides a payment schedule under this part, but -

(i) the scheduled amount indicated in the payment schedule is less than the claimed amount indicated in the payment claim; or

(ii) the respondent fails to pay the whole or any part of the scheduled amount to the claimant by the due date for payment of the amount; or

(b) the respondent fails -

(i) to provide a payment schedule under this part within the time allowed by section 16 (4); and

(ii) to pay the whole, or any part of, the claimed amount to the claimant by the due date.

Note If a form is approved under s 47 for an adjudication application, the form must be used.

(2) An adjudication application to which subsection (1) (b) applies must not be made unless -

(a) the claimant has within 20 business days immediately following the due date for payment, notified the respondent of the claimant's intention to apply for adjudication of the payment claim; and

(b) the respondent had an opportunity to provide a payment schedule to the claimant within 5 business days after receiving the claimant's notice.

(3) An adjudication application -

(a) must be in writing; and

(b) if the application is made under subsection (1) (a) (i) - must be made within 10 business days after the claimant receives the payment schedule; and

(c) if the application is made under subsection (1) (a) (ii) - must be made within 20 business days after the due date for payment; and

(d) if the application is made under subsection (1) (b) - must be made within 10 business days after the earlier of -

(i) the end of the 5-day period mentioned in subsection (2) (b); and

(ii) the day the claimant receives the payment schedule; and

(e) if the authorised nominating authority has set an application fee - must be accompanied by the application fee; and

(f) must identify the payment claim and any payment schedule to which it relates; and

(g) may contain the submissions relevant to the application that the claimant chooses to include.

(4) The authorised nominating authority must refer the application to an eligible adjudicator as soon as practicable.

Note For eligibility for adjudicators, see s 20.

22 Adjudication responses

(1) A respondent may give an adjudicator a response to a claimant's adjudication application (the adjudication response) ...

...

(4) The respondent must not include in the adjudication response any reasons for withholding payment unless those reasons have already been included in the payment schedule provided to the claimant.

24 Adjudicator's decision

(1) The adjudicator for an adjudication application must decide -

(a) the amount of the progress payment, if any, to be paid by the respondent to the claimant (the adjudicated amount); and

(b) the day on which the amount became or becomes payable; and

(c) the rate of interest payable on the amount.

(2) In deciding an adjudication application, the adjudicator must only consider the following:

(a) this Act;

(b) the construction contract to which the application relates;

(c) the payment claim to which the application relates, together with any submission, including relevant documentation, properly made by the claimant in support of the claim;

(d) the adjudication application;

(e) the payment schedule, if any, to which the application relates, together with any submission, including relevant documentation, properly made by the respondent in support of the schedule;

(f) the adjudication response, if any;

(g) the result of any inspection by the adjudicator of any matter related to the claim.

...

29 Claimant may suspend work

(1) This section applies if a claimant gives notice to a respondent under section 17, section 18 or section 26.

(2) The claimant may suspend carrying out construction work or supplying related goods and services under a construction contract during the period -

(a) starting 2 business days after the day the claimant gives the notice to the respondent; and

(b) ending 3 business days after the day the claimant receives the amount payable by the respondent under section 17 (1), section 18 (1) or section 25 (1).

(3) If the claimant, in exercising the right to suspend carrying out construction work or supplying related goods and services, incurs a loss or expense because the respondent removes any part of the work or supply from the contract, the respondent is liable to pay the claimant the amount of the loss or expense.

(4) A claimant who suspends construction work or the supply of related goods and services under this section is not liable for loss or damage suffered by the respondent, or by any person claiming through the respondent, because the claimant did not carry out that work or supply the goods and services, during the period of suspension.

Did the adjudication decision involve jurisdictional error?

34. The parties did not identify any case in this or any other jurisdiction which addressed whether the adjudicator's decision as to the amount claimed should be characterised as a decision which the statute authorises the adjudicator to make or whether it is one which a superior court is entitled to determine when considering whether the adjudicator has exceeded his or her jurisdiction.

35. The parties described the relevant question as being whether the quantum of the amount claimed is a jurisdictional fact. That term has been described as a "criterion, satisfaction of which enlivens the power of the decision maker to exercise a discretion": Enfield City v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [28]; Gedeon v New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at [43]. The significance of the characterisation of a fact as a jurisdictional fact is that it means that the opinion of the decision maker is not determinative of the question whether the fact exists or not and hence if a court concludes that the fact does or does not exist that will enliven or disable the statutory power purported to have been exercised.

36. In the present case the quantum of a payment claim is not something which exists or does not exist. Instead it is a specified amount. It is possible to characterise the existence of a claim for a particular amount as a precondition to the jurisdiction of an adjudicator to make an award of an amount less than or equal to the claimed amount. However, as demonstrated by the difference of opinion between Spigelman CJ (at [35]) and McDougall J (at [179]) in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 78 NSWLR 393 (Chase Oyster Bar) as to whether or not the giving of notice under s 17 of the Building and Construction Industry Security of Payment Act 1999 (NSW) should be characterised as jurisdictional fact, as opposed to a contraction of the content of a power or an integer or element of a right, reasonable minds may differ on which species of the genus of jurisdictional error is involved. For present purposes it is less significant to address questions of taxonomy than to focus on the underlying statutory questions. Those are:

(a) whether the quantum of a payment claim defines the upper limit of the quantum of a progress claim that may be determined by an adjudicator under s 24 of the SOP Act; and

(b) if so, whether the determination of the adjudicator of the quantum of the payment claim is determinative of the scope of the adjudicator's jurisdiction or whether it is open to a superior court to determine the magnitude of the payment claim when determining whether the adjudicator has acted within jurisdiction.

37. Both questions are questions of statutory interpretation. The second involves issues which will commonly be involved in determining whether a fact is a jurisdictional fact.

38. In my view, the statutory scheme indicates a legislative intention that the claimed amount defines the outer limit of the amount that may be determined by an adjudicator under the Act and is not a matter which is conclusively determined by the adjudicator. This means that it is open to this Court, when deciding whether or not the adjudicator has fallen into jurisdictional error, to determine for itself the amount claimed in the payment claim. These conclusions are compelled by the text and structure of the Act. I will refer to the most significant provisions that lead to that conclusion.

39. Section 15(2)(b) requires, as one of the mandatory conditions for the existence of a payment claim, that the claim "state the amount of the progress claim that the claimant claims is payable". This is defined as the "claimed amount" which is then used in the subsequent provisions.

40. Section 16 is significant because it illustrates that the statutory scheme operates on an adversarial basis which depends upon the position adopted by the parties and that as part of that process the use to which the "claimed amount" is put is separate from, and antecedent to, any decision by the adjudicator.

41. Section 16 requires the payment claim to be responded to by a payment schedule. The section makes it clear that the provision operates by reference to the claimed amount. Thus the statute requires that the scope of the dispute be determined by the position taken by the claimant in identifying the claimed amount and the respondent in identifying the scheduled amount.

42. Section 16(3) requires identification of why the scheduled amount is less than the claimed amount and the reasons for that difference. Those reasons are therefore targeted at the difference between the parties, namely, the difference between the claimed amount and the scheduled amount. The respondent's obligation to address that difference is separate from, and antecedent to, any decision by an adjudicator. The imposition of the obligations relating to reasons in s 16(3) proceeds on the basis that the claimed amount is objectively ascertainable. The essential matters required by s 16(3) for there to be a valid payment schedule can only be determined by reference to an objectively existing claimed amount. It would not, for example, be possible to provide a valid payment schedule which identified "why the scheduled amount is less" than the claimed amount or "the respondent's reasons for withholding payment" if it was not possible to objectively identify the amount claimed.

43. Similarly the imposition of liability for the "claimed amount" under s 16(4) and the consequent entitlements under s 17(2) involve an objectively determinable liability not dependent upon any determination of an adjudicator. Most obviously, under s 17(2)(a) the "unpaid portion of the claimed amount" which may be recovered in a court of competent jurisdiction is plainly an objectively determinable amount having regard to the "claimed amount" and an amount paid in relation to the progress claim.

44. The giving of a notice to suspend works under ss 17(2)(b) or 18(2)(b) and the suspension of works under s 29 is a statutory entitlement dependent upon a liability to pay the unpaid portion of "the claimed amount". Clearly the claimed amount must be something objectively ascertainable independently of any adjudication so as to found the entitlement to suspend works.

45. Section 19 relates to adjudication applications. The preconditions to the making of an adjudication application identified in s 19(1)(a) and (b) are based on there being a difference between the scheduled amount and the claimed amount, the scheduled amount not being paid or the claimed amount not being paid. In order to determine whether the preconditions are satisfied it must be possible to objectively determine the claimed amount separately from, and prior to, any adjudication. Similarly, the scheduled amount which must also be able to be objectively identified is an amount which is dependent upon, and responsive to, the claimed amount.

46. Once the adjudication process is commenced, the objectively determinable quantum of the claimed amount remains of significance. The prohibition in s 22(4) on raising matters not raised in the reasons included in the payment schedule under s 16(3) depends upon the claimed amount being objectively determinable. That is because the payment schedule need only address the reasons for the scheduled amount being less than the claimed amount or the reasons for withholding payment. Reasons must be targeted at the area of the dispute defined by the difference between the claimed amount and the scheduled amount. The prohibitions in s 22(4) operate in relation to that identified area of dispute, confining the reasons that may be relied upon in the adjudication.

47. In s 24 the obligation of the adjudicator is to decide the amount of the progress payment, the day on which the amount becomes payable and the rate of interest payable on the amount. There is no requirement or statutory power to determine the claimed amount. It is notable that the obligation on the adjudicator is not expressly confined by the claimed amount. Instead the obligation is to determine the "amount of the progress payment". The adjudicator is obliged to "consider", inter alia, the payment claim and payment schedule, but is not expressly confined to the amount in the payment claim. This leaves open the contention that the adjudicator is able to decide that the amount of the progress claim may be an amount greater than the claimed amount.

48. Returning to the first of the two questions that I have identified above, in my view, having regard to the statutory provisions earlier referred to, the capacity to determine the amount of a progress payment must be confined, at the upper end, by the claimed amount. That is because the statutory process of a payment claim, payment schedule, adjudication application and adjudication response are all based upon the identification by a claimant of the claimed amount and a response by the respondent to that claim. The statutory process is clearly one which permits the parties by an adversarial process to define the scope of their dispute. That is consistent with the contractual processes which the Act mirrors and partially adopts. It is also consistent with the autonomy that parties have to determine the claims which they wish to make and pursue under the Act. It would be inconsistent with those statutory processes if, notwithstanding that a claimant had only sought a particular amount, the adjudicator awarded a greater amount.

49. So far as the second question is concerned, the proper interpretation of the Act is that the claimed amount is not conclusively determined by the adjudicator and is a fact which may be determined by the Court in deciding whether the adjudicator has exceeded his or her jurisdiction. The factors which lead to that conclusion are:

(a) The decision is not expressly given to the adjudicator. Rather, the matters required to be determined by the adjudicator are those set out in s 24(1).

(b) The fact in question is a simple numerical factual conclusion and not a matter involving esoteric factual or legal analysis, particular expertise or local knowledge, questions of degree or opinion or contestable value judgments: cf Chase Oyster Bar at [233]; Woolworths Limited v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707at [53]-[62] (Pallas), Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297 at 303-304; Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning [1999] FCA 262; (1999) 86 FCR 266 at [27].

(c) The claimed amount is a matter which is required to exist temporally well prior to any application for adjudication. It is therefore a matter that is "legally antecedent to the decision-making process" undertaken by the adjudicator: Pallas at [47].

(d) The claimed amount is a matter which has separate statutory consequences quite apart from any effect given to a decision of an adjudicator, most particularly the creation of a debt (s 17(2)(a)(i)) and the entitlement to suspend works (s 29). Those separate statutory consequences tell against any decision of the adjudicator being determinative, as a court may be called upon to rule as to the claimed amount outside its supervisory jurisdiction in circumstances where any conclusion of an adjudicator would clearly not be determinative.

(e) While questions of the inconvenience of an interpretation which makes a particular requirement jurisdictional may be significant or even determinative (see Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority [2007] ACTSC 95; (2007) ACTSC 95 at [45]), any adverse side-effects of not permitting the quantum of the claimed amount to be conclusively determined by the adjudicator are minimal having regard to the fact that in the vast majority of cases there could be no dispute as to quantum because of the limited factual enquiry involved.

50. While it might be possible to characterise the existence of a payment claim for a claimed amount at least as great as the amount awarded as a jurisdictional fact necessary for the making of an award, I consider that it is more appropriate to characterise what occurred in the present case as a jurisdictional error. The jurisdictional error involved the adjudicator exceeding the jurisdiction which he was given as a consequence of TIO's payment claim.

51. The parties appeared to agree that if there was a jurisdictional error then it was not possible to sever those parts of the determination which exceeded the amount of $41,710.67. This appears to me to be consistent with the decision of the High Court in Minister for Immigration v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [53]. See also Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140 at [92] and James Trowse Constructions Pty Ltd v ASAP Plasterers Pty Ltd [2011] QSC 145 at [57]- [59] (James Trowse).

52. As a consequence it is not possible to save the entitlement to payment of the $41,710.67 that would have existed if the adjudicator had confined his decision to that which had been claimed in payment claim 13. As Atkinson J observed in James Trowse (at [55]), this is "not necessarily an attractive result". It arises because there was no application for relief under s 43, and s 43(6) does not extend to situations where the Court is only exercising its supervisory jurisdiction.

53. If a jurisdictional error is established then the usual course would be to grant an order in the nature of a writ of certiorari: see Chase Oyster Bar at [269]-[284]; BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd (No 2) [2013] QSC 67 at [8]- [11]. There are some circumstances in which relief will be refused, for example, where a party has run a claim on one basis before the adjudicator and then sought to challenge the claim on a different basis in the court: see Kembla Coal & Coke Pty Ltd v Select Civil Pty Ltd [2004] NSWSC 628 at [110]; Oppedisano v Micos Aluminium Systems [2012] NSWSC 53 at [43].

54. In the present case, although the defendant directed some criticism of the plaintiff for failing to raise the difference between the amount claimed in the adjudication application and in the payment claim at the point in time when the adjudicator was accepting and considering the adjudication application, I do not consider that this is a sufficient reason to justify a refusal to grant relief. Having regard to my findings on the scope of the payment claim, it is not inappropriate that TIO be confined to no more than the statutory advantage which the legislation gave to it. That it might lose even that advantage as a result of the inflexibility of relief for jurisdictional error is not ideal. However, the difficulty that it finds itself in is a result of it having led the adjudicator into error. It is certainly less of an injustice that it live with the consequences of that error than that which would be borne by the plaintiff if a decision infected by jurisdictional error, which imposes a liability upon the plaintiff of $101,582.60 more than the law would allow, was permitted to stand.

55. The orders sought by the plaintiff included an order that the decision of the adjudicator be "set aside or be declared void" and an injunction restraining the obtaining of an adjudication certificate or its filing as a judgment. In my view, the most appropriate order is an order in the nature of a writ of certiorari quashing the adjudicator's decision. Once that is made then there is no need for further injunctive relief as the basis for any certificate or judgment has been removed.

1. The time in which these proceedings may be commenced is extended to 11 November 2016.

2. An order in the nature of and to the same effect as a writ of certiorari quashing the decision of the adjudicator in relation to adjudication number 2016ACTAT006 made on 30 March 2016.

3. The parties are to file and serve written submissions limited to not more than three pages and any evidence to be tendered in relation to the question of costs no later than 4:00 pm on 14 December 2016.

I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.