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[2026] NTSC 9
General information, not legal advice.
Supreme Court of the NT
2026-01-29
Kelly J
Original judgment source is linked above.
The Applicant's tax invoices must be in taxable form and the Respondent must pay any undisputed components of a claim and only withhold payment of disputed components.
[40] At [216] and [217] the Adjudicator stated:
The EPCM Contract, entitles the Respondent to claim set off with details set out in clauses 9.2(g) and clause 16. The Respondent, whether wrongfully or not, has deducted the amounts of its set off against the Applicant's bank guarantees. Deductions and set off are further dealt with by the Respondent at AR182 and at SDAW7.140 to 7.142.
After consideration of all the set off claims by the Respondent, I find that the Respondent has not demonstrated to me that the deductions/ set off exceed the amounts of the bank guarantees and as such there is no need for me to determine whether any further deductions should be made against any amount which I may decide to award in this adjudication determination. Further in circumstances where the Applicant has clearly and voluntarily given up on pressing for the return of the bank guarantees, I am of the view that it is not necessary for me to make any determination in regard to the return of the bank guarantees in this adjudication determination.
[41] At [218] the Adjudicator made the following determination:
At AR 109(c) [and further expanded at AR 137 and AR 143] the Respondent asserts "Fatally" there is no evidence of the Applicant making actual payments for any of the amounts claimed after early August 2023. In this regard I deal with this issue at paragraphs 200 to 202 above. Clearly in circumstances where the Applicant has submitted payment claims in the same format as previously submitted (and accepted) and the Respondent has not issued a payment statement in response to the payment claim the subject of this adjudication application, I am of the view that it is not fatal to the Applicant's adjudication application where the Applicant has not provided proof of payment for each and every invoice received from its subordinates.
[42] There followed a lengthy and detailed analysis of the claims and the dealings between the parties culminating in a determination that Crowley's assertion that the Contract had been terminated for repudiation could not be substantiated and that therefore the contractual consequences for termination for convenience apply. That included an entitlement to demobilisation costs. (That conclusion is disputed but the dispute is not relevant to this proceeding.)
[43] Under the heading "MY METHODOLOGY", the Adjudicator explained how he went about determining the adjudication application. He made reference to a "Dropbox" containing the same (or largely the same) material that Latitude had provided to Crowley in support of its payment claims since May 2023. He subjected this material to a process of automated data analysis which he manually checked. (The Determination provides details of the process including the fact that duplicate entries and fragmented records [where files were split or saved twice] were identified and consolidated.) Where he noted discrepancies or irregularities, the Adjudicator said he corrected these manually. Where he noted duplication of amounts claimed, he deleted those. He then did a reconciliation of vendor or supplier invoices supporting each payment claim.
[44] In other words, the Adjudicator accepted the invoices from subcontractors and other suppliers at their face value and simply checked that there were no duplications or other irregularities, for example in relation to margins claimed. In relation to the margins applicable to different categories of claim, the Adjudicator adopted the rates he had determined to be applicable in his earlier analysis of the relevant contract provisions (at para [215] of the Determination). Then, at para [354] he provided his answers to the list of 18 issues he had identified in para [64]. In doing so, in relation to some of the issues he adopted a somewhat formulaic approach saying, "The assessment has adopted the face values on the invoices presented in the "Dropbox" folder," or words to the same effect.
[45] The essence of the Adjudicator's methodology (explained in detail in the Determination) was to do a thorough analysis of the invoices in relation to each head of claim, making adjustments for any double claims or other irregularities and, taking the adjusted invoices at face value, to come to an amount owing by Crowley to Latitude, subject to any set-off claims. He then dealt with Crowley's set-off claims in the way he outlined in paras [216] and [217] of the Determination.
The EPCM Contract, entitles the Respondent to claim set off with details set out in clauses 9.2 (g) and clause 16. The Respondent, whether wrongfully or not, has deducted the amounts of its set off against the Applicant's bank guarantees. ...
After consideration of all the set off claims by the Respondent I find that the Respondent has not demonstrated to me that the deductions/ set off exceed the amounts of the bank guarantees and as such there is no need for me to determine whether any further deductions should be made against any amount which I may decide to award in this adjudication determination. Further in circumstances where the Applicant has clearly and voluntarily given up on pressing for the return of the bank guarantees, I am of the view that it is not necessary for me to make any determination in regard to the return of the bank guarantees in this adjudication determination.
[46] Clause 9.2(g) of the Contract referred to by the Adjudicator in para [216] is as follows:
Without limiting any other right Crowley may have under this Contract or otherwise at law, Crowley may deduct or set-off from payments to the Contractor under this Contract any debt or other moneys due from the Contractor to Crowley or which is otherwise owed to Crowley or any Claim to money which Crowley may have against the Contractor whether for damages or otherwise whether under this Contract or otherwise at law.
[47] Implicit in this approach is the finding that, in the absence of a Payment Statement as required by clause 9.2(d) of the Contract, the onus is on Crowley to satisfy the Adjudicator of the amount of any set-off. The Adjudicator also made explicit findings that Crowley bore the onus of establishing its set-offs (including the amount) at paras [95](iv) and [215](xii) of the Determination. (Crowley asserts that this finding is wrong. That is dealt with below in discussing Grounds 2 and 3.) Clause 9.2(d) provides:
Within 5 days after receipt of a payment claim referred to in clause 9.2(a), Crowley's Representative will assess the claim and issue to the Contractor a payment statement:
(i) certifying the amount payable by Crowley to the Contractor or by the Contractor to Crowley (as the case may be); and
(ii) setting out the calculations employed to arrive at the amount certified to be payable and the reasons for any difference between the amount certified and the amount claimed by the Contractor.
[48] Clause 8 of the Heads of Agreement provides:
L63 [Latitude] does not guarantee any price or timeline for Mechanical or Practical Completion. L63 LLC tax invoices must be in taxable form and Crowley must pay any undisputed components of a claim and only withhold payment of disputed components.
[49] In determinations which are not challenged in this proceeding, the Adjudicator effectively dismissed categories of claimed set-offs totalling over AUD 20,000,000 along with a substantial amount in USD, that is to say AUD 3,019,331.35 and USD 1,059,347.76 for demobilisation costs; USD 521,370 for labour costs claimed in November 2024; and AUD 17,018,661.45 for procurement of goods or services from Latitude 63 Australia Pty Ltd. He also dismissed the claim for USD 1,242,246 for "higher rates claimed" and a substantial part of the AUD 4,536,080.55 and USD 200,103.94 for "Higher Margin claimed" for reasons that are not challenged in this proceeding.
Ground 1: Has Crowley shown that the Adjudicator fell into jurisdictional error by wrongly deciding that he had no jurisdiction to determine Crowley's set-off claims (or some of them)?
[50] In Ground 1, Crowley complains that in making the Determination, the Adjudicator incorrectly considered that he did not have jurisdiction to consider Crowley's set-off claims outlined in its Response at [160] to [163] under the heading "Subcontractor and Supplier payment fraud". The relevant paragraphs of the Determination are said to be [94] and [176] to [177].
[51] The relevant paragraphs of the Response are as follows:
[52] The Ralph Gavin Hughes affidavit referred to in para [162] of the Response complains about the involvement of the subsidiary company Latitude 63 Australia Pty Ltd, a matter that was dealt with by the Adjudicator who rejected the basis of Crowley's complaint by reference to the Heads of Agreement. The affidavit then recites correspondence from Crowley to Latitude which raised various issues and concerns, asked Latitude for information, and complained about lack of engagement by Latitude. The affidavit also says that Crowley has sought information from subcontractors directly and that Latitude had discouraged them from dealing with Crowley. There is nothing in that part of the affidavit that could have been the subject of any determination by the Adjudicator that Crowley was entitled to set-off any particular amount against Latitude's payment claim.
[53] There follows a table setting out past payment claims made by Latitude that Mr Hughes says are the subject of a review by Crowley and this statement:
During January 2025, having regard to the extent and complexity of the review of L63 LLC's claims and payments, and the seriousness of and increasing concerns and issues raised, Crowley engaged KordaMentha to provide additional audit support for Crowley's review of L63 LLC's claims, which remains ongoing.[28]
Again, it is hard to see how this could have been the subject of a determination by the Adjudicator that Crowley was entitled to set-off any particular amount against Latitude's payment claim.
[54] In the balance of the affidavit, Mr Hughes deposes to suspicions held by Crowley that certain invoices from subcontractors and/or suppliers (Liquip and Enermech) may not be legitimate (based in large measure on their appearance); and identifies three credit notes issued to Latitude[29] which Crowley says were not passed on to Crowley. (Latitude agreed that it had mistakenly failed to pass on to Crowley several credit notes.)
[55] Finally, Mr Hughes' affidavit refers to a letter from Crowley detailing suspicions that Latitude may have shipped unspecified equipment off site. Again, it is difficult to see how this could be the subject of a determination by the Adjudicator that Crowley was entitled to set-off any particular amount against Latitude's payment claim.[30]
[56] The paragraphs of the Determination complained of are as follows:[31]
176.Further the Respondent makes general allegations of events of fraud or attempted fraud and also apparent theft and contends that there is evidence of such in the Adjudication Application.
[57] Crowley contends that in these paragraphs the Adjudicator is saying he did not have jurisdiction to deal with Crowley's claimed set-offs, or at least with some of them.
[58] Considered in the context in which these paragraphs occur, I do not agree that that is what the Adjudicator was saying. The task of the Adjudicator under s 33 of the Act was to determine whether any amount was owing by one party to another under the terms of the Contract between the parties, and, if so, how much; not, as Crowley asserted in the Response, to "resolve all of the relevant legal, contractual and factual issues that remain extant as between the parties, including but not limited to identifying:
(i) substantiation and evidence of any and if so what amounts claimed by L63 [Latitude];
(ii) evidence that L63 [Latitude] has in fact paid any and if so what amounts;
(iii) to what extent L63 [Latitude] has overcharged and is liable to Crowley; and
what other amounts are payable by L63 [Latitude] to Crowley."[32]
[59] Performing the task specified in s 33 involved construing the payment provisions in the Contract, which the Adjudicator did at paras [200] to [202] and [215] of the Determination and then applying those provisions (including clause 9.2(d) of the Contract and clause 8 of the Heads of Agreement) which the Adjudicator did at para [354]. This did not involve making any findings of fact about the existence or otherwise of fraud on the part of Latitude. If, for example, there were credit notes from subcontractors that were not passed on, and, under the Contract, this resulted in a lesser amount being payable, then it would make no difference whether that was due to fraud or mistake; the only task the Adjudicator had to perform was to determine what amount, if any, was payable under the Contract. That was the task the Adjudicator set himself and that was the task he carried out, or attempted in good faith, to carry out. If errors were made in the process (and I do not find there were or were not) they were errors within jurisdiction.
[60] Crowley relied on ABB Australia Pty Ltd v James Engineering Pty Ltd[33] in which I held that an adjudicator's failure to consider an adjudication respondent's set-off claims or counterclaims, because the adjudicator considered he did not have jurisdiction to consider them, was a jurisdictional error. This was upheld by the Court of Appeal[34] where it was explained that the adjudicator had "misconceived the function which he was performing and the extent of his powers" and obligations under s 33(1)(b) of the Act. Consequently, he wrongly concluded that he did not have jurisdiction to consider and determine ABB's set-off claim on its merits. He failed to carry out his core function under s 33(1)(b) of the Act.
[61] This authority does not assist Crowley. The Adjudicator in this case did not misconceive the nature of his functions under the Act. As explained above, he correctly identified his task under s 33 of the Act: to determine whether any amount was owing by one party to another under the terms of the Contract between the parties, and, if so, how much. He was not under any misconception that he could not consider set-off claims by Crowley. He correctly identified that the Contract between the parties made provision for Crowley to set-off against claims by Latitude any amounts owing or claimed by Crowley, including damages claims. At paras [163] to [165] of the Determination, under the heading "SETOFF", the Adjudicator analysed the sections of the Contract dealing with Crowley's contractual rights to set-offs. At para [164] the Adjudicator set out clause 9.2(g) which gives Crowley a wide right to set-off amounts owing by Latitude against amounts owed to Latitude, and at para [165], the Adjudicator set out clause 16(b) of the Contract which provides that failure to include a set-off in a Payment Statement will not preclude Crowley from claiming the set-off in a subsequent Payment Statement. Finally, the Adjudicator set out Crowley's set-off claims and dealt with them by saying Crowley had not established that the value of its claims exceeded the value of the security it had called up to meet those claims.
[62] The Adjudicator is not a lawyer and it should not be assumed that in using the word "jurisdiction" he was necessarily using it in any technical legal sense, rather than simply referring to his function in a general sense. Read in context, it seems to me that all the Adjudicator was indicating in paras [94] and [176] to [177] (the paragraphs objected to by Crowley), was that it was no part of the process of determining whether an amount was owing to a party under the Contract to decide whether any deductions/set-offs to be made under the provisions of the Contract arose as a result of fraud.
[63] Part of that context is the fact that the claims of fraud and theft in the Response are largely inchoate, expressed vaguely in terms of "suspicions" and not specifically quantified. This is not a case in which Crowley articulated a claim for damages for an ascertained amount and claimed the right under the Contract to set that sum off against Latitude's Payment Claim, and the Adjudicator wrongly refused to do so under the misapprehension that he had no jurisdiction to allow such a claimed set-off.
[64] This Court should be slow to infer jurisdictional error from a form of wording in a Determination: it should rather look to the substance of the Determination to ascertain whether the Adjudicator has applied him or herself to the correct task. In JKC Australia LNG Pty Ltd v INPEX Operations Australia Pty Ltd & Ors,[35] the Court of Appeal said:
[38] The legislative scheme operates in a "rough and ready" way by imposing a mandatory regime regardless of the terms of the contract; extremely abbreviated time frames for the exchange of payment claims and adjudication applications; and a very limited time frame within which adjudicators are required to make decisions on what can often be extremely complex claims involving very substantial volumes of documents. The tight time limits the Act imposes on an adjudicator, the possibility that the adjudicator may have no legal qualifications, and the interim nature of an adjudication inform the content of the requirements of procedural fairness in any adjudication.
[39] For these reasons, adjudications are not intended to be scrutinised in the same way as considered final determinations ...
[65] Crowley has not shown that the Adjudicator fell into jurisdictional error by wrongly deciding that he had no jurisdiction to determine Crowley's set-off claims (or some of them).
[66] Specific complaints about the way the Adjudicator dealt with the set-off claims are dealt with under Ground 2.
Ground 2: Has Crowley shown that the Adjudicator fell into jurisdictional error by failing to engage meaningfully with the arguments put by Crowley in the Adjudication Response or was he acting within the scope of his authority when he took the invoices supporting Latitude's claim at face value and then determined that Crowley had not proved that the value of any set-offs it has did not exceed the value of the security?
[67] As explained above, the approach taken by the Adjudicator in reaching the Determination was to do a thorough analysis of the invoices in the Dropbox in relation to each head of claim, making adjustments for any double claims or other irregularities and, taking the adjusted invoices at face value, to come to an amount owing by Crowley to Latitude, subject to any set-off claims. He then dealt with Crowley's set-off claims by:
(a) taking note of the fact that Crowley had called up the bank guarantees provided by Latitude and deducted the amounts of its set-off claims against the bank guarantees;[36] and
(b) finding that Crowley had not demonstrated that the deductions/set-offs exceed the amount of the guarantees (AUD 6,100,000) so that there was no need for him to determine whether any further deductions should be made against any amount he determined to be owing to Latitude.
[68] Crowley complains that it was not open to the Adjudicator to deal with Crowley's set-off claims in this way. First, Crowley contends that the Adjudicator was wrong to determine that the onus was on Crowley to demonstrate that the value of the set-offs exceeded the value of the guarantees and that this was a jurisdictional error. This contention cannot be accepted. It is difficult to see how the Adjudicator could allow a set-off if Crowley had not provided sufficient evidence of the amount of the set-off as well as evidence of facts giving rise to the entitlement to set-off that amount. Further, the Contract provides that Crowley has an obligation to serve a Payment Statement setting out the amount it certifies to be owing, including the calculation of that amount and reasons for any difference between the amount claimed in the Payment Claim and the amount certified to be owing in the Payment Statement. In any event, even if the Adjudicator was wrong to find that the onus was on Crowley to establish the amount of its claimed set-offs (and that they were greater than the amount of the guarantees), as explained below, this finding was a finding made by the Adjudicator in the exercise of the jurisdiction conferred on him by the Act. The finding was made in the performance by the Adjudicator of the task imposed on him by s 33(1)(b), to determine whether an amount was owing by one party to another under the terms of the Contract.
[69] In oral submissions, counsel for Crowley pointed to the magnitude of claims in the Response and asked, rhetorically, how the Adjudicator could possibly have concluded that they did not amount to more than $6,100,000. It is not to the point whether or not the Adjudicator was factually correct in any assessment he may have made about the magnitude of Crowley's set-offs. He determined that it was not necessary for him to make any such assessment: the onus was on Crowley to satisfy the Adjudicator of the value of any claimed set-offs and he determined that Crowley had not demonstrated that the claimed set-offs exceeded the value of the security.
[70] In considering this submission by Crowley, it should be noted that it is not possible to deduce from the Response and its attachments what is the total of Crowley's claimed set-offs or what is claimed under various categories and it appears that many of the categories of claim overlap. (See [24] to [26] above.) The Determination is replete with references to the vagueness, generality and lack of specificity of Crowley's claims for set-offs and deductions and, as noted above, some of the Adjudicator's determinations which are not the subject of challenge in this proceeding (such as the one at para [218]) eliminated entire categories of Crowley's claims. Between AUD 20,000,000 and AUD 25,000,000 of the amounts so eliminated (plus substantial amounts in USD) are set out at [48] above. To that might be added the AUD 19,103,371.18 and USD 4,916,950.26 claimed to be unsubstantiated. This was dismissed by the simple application of clause 9.2(d) of the Contract and clause 8 of the Heads of Agreement. It did not involve the further steps set out in paras [216] and [217] of the Determination complained of under Ground 2.
[71] The Adjudicator was entitled to determine that Crowley had failed to satisfy him that the value of any set-offs exceeded the value of the security. If he made any error in doing so (and I do not find that he did), it was an error within jurisdiction.
[72] In Ground 2, Crowley also asserts that the Adjudicator did not conduct the requisite level of intellectual engagement with the parties' submissions in relation to Crowley's claimed set-offs and contends that this is demonstrated in key parts of the Determination and the absence anywhere else in the Determination of any consideration of the issues raised. This contention is based on s 34 of the Act which provides that an adjudicator must, if possible, make the determination on the basis of the application and its attachments and, if a response has been prepared and served in accordance with s 29, the response and its attachments. The submission is that the Adjudicator was obliged to consider the Response and its attachments and he failed to do so because he did not engage meaningfully with the submissions in the Response.
[73] Crowley relies on the following authorities:
(a) CH2M Hill Australia Pty Ltd & Anor v ABB Australia Pty Ltd & Anor,[37] in which I said:
[43] It is uncontroversial that, in order for there to be a valid determination within the meaning of the Act which is immune from review by reason of s 48(3), the adjudicator must make a bona fide attempt to comply with the essential requirements of the Act. In Brodyn Pty Ltd v Davenport[38] Hodgson JA (with whom Mason P and Giles JA agreed) said:
What was intended to be essential was compliance with the basic requirements ....., a bona fide attempt by the adjudicator to exercise the relevant power relating to the subject matter of the legislation and reasonably capable of reference to this power, and no substantial denial of the measure of natural justice that the Act requires to be given. If the basic requirements are not complied with, or if a purported determination is not such a bona fide attempt, or if there is a substantial denial of this measure of natural justice, then in my opinion a purported determination will be void and not merely voidable, because there will then not, in my opinion, be satisfaction of requirements that the legislature has indicated as essential to the existence of a determination.
(b) Timwin Construction v Facade Innovations,[40] in which McDougall J said:
[38] There has not been any decision to my knowledge elaborating the requirement of good faith to which Hodgson JA pointed in Brodyn. Clearly, I think, his Honour was not referring to dishonesty or its opposite. I think he was suggesting that, as is well understood in the administrative law context, there must be an effort to understand and deal with the issues in the discharge of the statutory function: see, for example, the speech of Lord Sumner in Roberts v Hopwood.[41]
[43] It is uncontroversial that, in order for there to be a valid determination within the meaning of the Act which is immune from review by reason of s 48(3), the adjudicator must make a bona fide attempt to comply with the essential requirements of the Act ...
(c) Laing O'Rourke Australia Construction v H&M Engineering and Construction,[42] in which McDougall J said:
[34] I do not think that it is necessary to say more than that, in the words of Lord Sumner in Roberts v Hopwood [1925] AC 578 at 604 (cited by me in Timwin at [38]), for administrative bodies to act in good faith, they must put "their minds to the comprehension and their wills to the discharge of their duty". As I said at [39] and [40], that view of the content of the obligation of good faith was supported by the requirement to "consider" various matters set out in s 22(2) of the Act. It follows that the obligation of good faith requires at least that adjudicators should turn their minds to, grapple with and form a view on all matters that they are required to "consider". (emphasis added)
[39] In my view, the obligation to consider various matters imposed by s 22(2) of the Act should be read in the same way: namely, as requiring an active process of intellectual engagement.
(d) case law from Western Australia (the other Australian jurisdiction which, like the Northern Territory has security of payment legislation based on the so-called 'West Coast Model') which recognised the need for an adjudicator to demonstrate active engagement with the dispute in their reasons.[43]
[74] Crowley acknowledges that in Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd[44] at [19] to [29] and Ceerose Pty Ltd v A-Civil Aust Pty Ltd[45] at [54] to [62] and [175], the New South Wales Court of Appeal has disavowed employment of the bona fide test and phrases like 'active intellectual engagement' or similar as casting a 'judicial gloss' on the underlying statutory obligations. However, Crowley contends that these have not been endorsed by any Territory decision and that there is binding Northern Territory Court of Appeal authority applying the bona fide attempt test.
[75] In my view, whatever words are used to describe the process, in this case the investigation remains whether the Adjudicator has complied with the mandatory obligations in the Act, including (relevantly) carrying out the correct task imposed by s 33(1)(b) - to determine on the balance of probabilities whether any party to the payment dispute is liable to make a payment and, if so, to determine the amount to be paid, and the date on or before which the amount must be paid - and has complied with the mandatory obligation in s 34 to make such a determination on the basis of the adjudication Application and the adjudication Response.
[76] Crowley illustrates the contended failure to actively engage with the case put by the Respondent in the adjudication Response by a number of examples. These examples must be viewed in light of:
(a) the Adjudicator's determination that, applying clause 9.2(d) of the Contract and clause 8 of the Heads of Agreement, the effect of Crowley's failure to submit a Payment Statement disputing any part of Latitude's Payment Claim was that Crowley was obliged to pay the whole of the Payment Claim;[46]
(b) the Adjudicator's related finding[47] that it was not fatal to Latitude's Payment Claim that it had not provided proof of payment of all amounts claimed for subcontractors and suppliers - and his comments in para [201] about Crowley accepting liability for costs "incurred", rather than paid;
(c) the Adjudicator's determination that Crowley had the onus of establishing its entitlement to any set-off and the amount of such set-off; and
(d) the Adjudicator's determination that Crowley had not satisfied him that the amount of any set-off Crowley was entitled to claim did not exceed the value of the security it had called up (ie $6,100,000).
[77] In K&J Burns Electrical Pty Ltd v GRD Group (NT) Pty Ltd & Anor[48] (at [107]) I said:
... a purported determination by an adjudicator is reviewable by the Court if, by reason of misconstruing the provisions of the Act which confer power upon him, or (possibly) for some other reason, the adjudicator has failed to observe an essential pre-condition for the exercise of that power, and hence for the existence of a valid adjudicator's decision or determination. That will not include errors in determining whether or not the provisions of s 28 of the Act have in fact been complied with, provided the adjudicator acts reasonably and in good faith because, as Mildren J said in the passage of Independent Fire Sprinklers quoted above, deciding these matters is a core function conferred on the adjudicator by the Act. [citation omitted]
[78] The point was put this way by Bond J (as his Honour then was) in Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd[49] (at [35]):
(a) The valid exercise of an adjudicator's jurisdiction is not conditioned on the adjudicator reaching what is objectively the correct conclusion on all of the questions of fact or law required by the consideration of the matters set out in s 88(2). Or, to put it another way, there are many errors of fact and law which might be made by an adjudicator which would not be regarded as going to jurisdiction.
(e) Adjudicators under the Payment Act do not have to get the answer right ...
[79] The Adjudicator made each of the determinations referred to at [75] above in the process of analysing the payment provisions in the Contract (including the provision in the Contract relating to Crowley's entitlement to set-off amounts owing or claimed by Crowley to be owing to it by Latitude against payment claims by Latitude). Such an analysis was a necessary step in performing his key task under s 33(1)(b) of the Act which was to determine whether any amount was owing by one party to another under the terms of the Contract, and, if so, how much. These findings were, accordingly, determinations made in the exercise of the Adjudicator's jurisdiction under the Act. In making these determinations the Adjudicator did not misconstrue the provisions of the Act from which he derived his power or otherwise fail to observe an essential pre-condition to the exercise of the power. The determinations have important implications for Ground 2 of Crowley's application in this proceeding.
[80] In Ground 2, Crowley complains that the Adjudicator was not entitled to adopt the formulaic approach of simply accepting the invoices at face value, ensuring there were no duplications or other irregularities and then saying, "The assessment has adopted the face values on the invoices presented in the 'Dropbox' folder," or words to the same effect. Crowley contends that the Adjudicator was obliged to intellectually engage with Crowley's arguments in relation to each of its claimed set-offs and that by adopting this formulaic approach, the Adjudicator demonstrably failed to do so.
[81] However, that submission ignores the Adjudicator's finding that, under the terms of the Contract, Crowley was obliged to pay to Latitude the amount of any Payment Claim not disputed in a Payment Statement that was obliged to be served within five days of receipt of a Payment Claim - and the other related findings set out at [75] above. As the Adjudicator said in the Determination, many of Crowley's submissions in the Response did not deal with and respond to the matters raised in the Application[50] and, given the Adjudicator's findings set out above, many of the submissions in the Response were simply irrelevant to the issue the Adjudicator had to determine.
[82] Whether those findings are legally correct (and I make no finding that they are not) is not relevant to this application for review of the Determination. Those determinations were made in the proper exercise of the Adjudicator's function of determining how much (if anything) was owed by one party to the Contract to another by construing and then applying the relevant terms of the Contract and the Heads of Agreement. If there was an error (and I make no finding that there was), it was an error within jurisdiction. In those circumstances, in treating the invoices in the Dropbox which were submitted in support of the Payment Claim (and hence the Application for adjudication) at their face value and simply performing a reconciliation applying the relevant rates and margins and eliminating any duplications, the Adjudicator was doing what he was obliged to do under s 33 of the Act, namely determining on the balance of probabilities whether any party to the payment dispute is liable to make a payment and, if so, determining the amount to be paid, applying the terms of the contract between the parties.
[T]he starting point for the Northern Territory Act is a payment dispute as defined in s 8: a payment dispute arises when the amount claimed in a payment claim is due to be paid under the contract and it has not been paid in full (or has been rejected or disputed).
As I said in INPEX Operations Australia Pty Ltd & Anor v JKC Australia LNG Pty Ltd & Anor:[52]
The third ground relied upon by INPEX for asserting that the
Determination was a nullity was that he failed to undertake the
statutory task in s 33(1)(b) which required him to consider whether it had been demonstrated that a particular amount was due. I do not
agree that an adjudicator must always look into the underlying "merits" of whether or not an amount claimed in a payment claim was "due" in the sense that the underlying work had been performed and correctly valued under the contract. As has been said many times in cases connected with this Act, the focus of the Act is on the contract. If the contract between the parties provides for a claim to be paid in full if not disputed within a given time, then there is no reason why an adjudicator ought not give effect to that provision in making a determination on the merits under s 33(1)(b), and every reason why he should. [emphasis added]
[84] Ground 2 must fail. The Adjudicator was acting within the proper scope of his authority when he took the invoices supporting Latitude's claim at face value and then determined that Crowley had not proved that the value of any set-offs it has did not exceed the value of the security it had called up.
[85] Crowley gave five examples of what it contended was the Adjudicator's failure to engage meaningfully with its submissions in the Response. Given the finding above, it is not strictly necessary to consider them. However, for the sake of completeness, each of those five examples is considered below.
[86] Crowley's Example 1 relates to GOAL & Protech Accounts. In its Adjudication Response, Crowley submitted that Latitude had charged for the same personnel (from labour hire suppliers GOAL and Protech) as both third party labour hire and as Latitude's employed personnel.[53] Crowley contended that the effect of this was that it had overpaid Latitude by USD 1,070,820.34. Crowley sought to recover that overpayment from Latitude by way of set-off against any amounts properly payable under the Payment Claim.
[87] The substance of Latitude's response was that in the middle of 2024 it undertook an audit of all GOAL and Protech invoices with Crowley; that at the end of that audit a binding agreement was reached as to what amounts were properly payable; and that Crowley should be compelled to adhere to this.
[88] Crowley responded denying the existence of any binding agreement and noted that any past payments were expressly on account.
[89] Crowley contended that the submissions made by the parties required the Adjudicator to determine the following issues (at a minimum):
(a) whether a joint audit of these costs had previously been undertaken by the parties and the outcome of same; [That is, did it ultimately require a payment to Crowley (as Crowley submitted) or a payment to Latitude (as Latitude submitted)]; and
(b) whether, as a consequence of the joint audit, there was a legal impediment that prevented Crowley from changing its position in relation to Latitude's entitlement to payment for these costs (assuming that that is what occurred), including:
(i) whether a binding agreement, for valuable consideration, had been reached following the audit as to L63's [Latitude's] entitlement to payment for these costs; and
(ii) whether any payments subsequently made by Crowley were on account, as the Contract expressly provides.
[90] Crowley submitted that the only specific comment in the Determination on the claimed set-off for the GOAL and Protech costs set-off appears to be the single sentence in para [354](xvi) which reads as follows:
My determination in relation to this has after proper review adopted the face values as shown on the invoices presented in the "Dropbox" folder.[54]
[91] The Adjudicator did not explain any specific steps that he took to determine whether any of the costs for GOAL and/or Protech had been claimed as both Latitude's employed personnel and third-party labour hire. Further, Crowley contended that the Determination is entirely devoid of any consideration or analysis of the parties' submissions on the issues raised by the parties (eg whether there had been a binding agreement following an audit). Crowley contended that it is apparent from the Adjudicator's statement at para [354] that he did not give consideration to these issues because his determination was based purely on an analysis of the invoices.
[92] Crowley submitted that this approach demonstrates a complete absence of intellectual engagement with the issues raised by the parties. Using the expression 'after proper review' is not a substitute for proper engagement: proper intellectual engagement requires an effective recognition and evaluation of competing contentions.
[93] Latitude submitted that the Adjudicator was entitled to deal with the GOAL and Protech claims in the way he did, particularly as he had very little evidence on which to consider whether there had been a binding agreement which precluded Crowley's claimed set-off and that, at the very least, this was a bona fide attempt to deal with the issue of what amount (if any) was owed in relation to the GOAL and Protech claims.
[94] For the reasons set out above, I agree with Latitude's submission. The Adjudicator's finding that the combined effect of clause 9.2(d) of the Contract and clause 8 of the Heads of Agreement was to oblige Crowley to pay any part of a Payment Claim not disputed in a Payment Statement served within five days of service of the Payment Claim, obviated the need for the Adjudicator to look behind the invoices supporting the Payment Claim the subject of the Application. (Strictly speaking, it obviated the need even to do the analysis and reconciliation of those invoices carried out by the Adjudicator, but he did so in order to eliminate obvious doubling up of invoices in the claim and matters of that nature and, presumably, to satisfy himself that the supporting invoices were referable to the Contract.)
[95] Given the determinations by the Adjudicator set out at [75] above, it was not necessary for the Adjudicator to make a finding about whether there had been an audit or whether there was a binding agreement to abide by the terms of the audit. Further, the onus was on Crowley to establish that it had an entitlement to a set-off greater than the value of the security it had called up to satisfy the set-offs and it failed to do so to the satisfaction of the Adjudicator. If the Adjudicator made any error in coming to this conclusion, it was an error within his jurisdiction.
[97] In a letter dated 6 May 2025, Latitude rejected any suggestion that it was responsible for the grouting issue because it was captured by the definition of 'Pre-Existing Defects' and, in any event, Latitude said that the checking of the previous contractor's work had been removed from the Contract on or about 14 March 2024.
[98] In a letter dated 7 May 2025, Crowley provided a further response on this issue. In that letter, Crowley noted that there was no evidence of any design issue with the tanks and that there was evidence that the grout was not installed by Latitude in accordance with the manufacturer's requirements.
[99] Crowley contended that the submissions made by the parties required the Adjudicator to determine (at a minimum) whether there was a defect in work performed by Latitude (or work in respect of which Latitude was responsible) including:
(a) whether such defect resulted from a failure in the design and/or construction of the tanks which had been undertaken by others such that it fell within the contractual definition of 'Pre-Existing Defects'; and
(b) whether by reason of the variation directed by Crowley on or about 14 March 2024, L63 [Latitude] was not responsible for the grouting failure.
[100] Crowley contended that the Adjudicator's only comment on this issue appears to be the single sentence:[56]
The assessment has adopted the face values as shown on the invoices presented in the "Dropbox" folder.
[101] Crowley made the same contention as it makes in relation to the first example, namely that that statement does not engage with the submissions made by either party as to liability for the grouting defect.
[102] Crowley asserted that similar arguments were made by the parties on two other line items concerning allegedly defective works, namely the line items 'Failure of XR5' for which a set-off of AUD 125,428.98 was claimed, and 'Other Non-Conformances' for which set-offs of AUD 606,306 and USD 44,235.71 were claimed, and that, again, while a series of factual and legal issues were raised in the parties' submissions on these defect claims, the only comments by the Adjudicator on these issues were in para [354](iii) and were in the same generic form as that extracted above. Crowley contended that this demonstrates an absence of any intellectual engagement with the issues.
[103] While accepting that the Adjudicator did not spell out his reasons for rejecting the claimed set-off in relation to the failed grouting, Latitude contended that the Adjudicator was entitled to deal with the issue the way he did by examining the relevant invoices and determining the amount owing subject to any set-off and then to say he was not satisfied that the amount of any set-off exceeded the amount of the guarantees that had been called up.
[104] Latitude made more detailed submissions in relation to the other defect claims but relied on the same general reasoning.
[105] This example put forward by Crowley is answered by reference to the same general findings set out above. It is rightly conceded by Latitude that this is a genuine set-off claim, unlike the bulk of Crowley's alleged set-offs which, in reality, were claims that various amounts had not been sufficiently substantiated for one reason or another. Nevertheless, the set-off claim is adequately answered by the Adjudicator's finding, made in the performance of his function under s 33 of the Act, that Crowley had not shown that the value of any set-off/s it may have exceeded the value of the security it had called up.
[106] Crowley's third example of an alleged failure by the Adjudicator to intellectually engage with the issues raised by the parties relates to Insurance. In its Adjudication Response, Crowley submitted that in previous payment claims, Latitude had sought and obtained payment for insurance premiums of USD 362,250 without providing substantiating documentation and, in the circumstances, Crowley was entitled to recover that amount by way of set-off.
[107] In a letter dated 6 May 2025, Latitude submitted that these costs were not claimed in the current Payment Claim and that while it had requested a copy of the invoice from its insurer, it was not able to obtain it in the time available.
[108] Crowley contended that the submissions made by the parties required the Adjudicator to determine (at a minimum):
(a) whether Latitude was claiming payment for the insurance premium (or whether Crowley had previously paid Latitude in respect of same); and
(b) whether the Contract entitled Latitude to payment in respect of costs for which no substantiating documentation had been provided.
[109] Crowley contended that the Adjudicator did not engage with Crowley's claim for a set-off for the insurance premium. Instead, the Adjudicator's only comment on this issue appears to be the single sentence:[57]
My determination in relation to this element has after proper review of the respective invoices is based on time and resources as listed on invoices in the Dropbox.
[110] Crowley contended that, in circumstances where Latitude accepted in its submissions that it had not provided the Adjudicator with a copy of an invoice substantiating the insurance premium (because Latitude had requested the same from the insurer but it had not yet been provided), it was nonsensical for the Adjudicator to say, as he did, that he had made his determination based on invoices included in the Dropbox folder, and that the only available inference from that statement is that the Adjudicator did not consider the parties' submissions on this claim.
[111] Latitude submitted that, as Latitude had told the Adjudicator that it was not making a claim in the Payment Claim for any such premium from Aurora National Insurance, a fact which could be quickly confirmed by searching the Payment Claim for the word "Aurora", there was nothing for the Adjudicator to determine in relation to this issue. The Adjudicator was not proposing to and did not include any such amount in his award.
[112] Latitude's contention is not to the point. Crowley claimed it had paid this amount previously and wanted to set-off the amount previously paid against the present Payment Claim.
[113] Latitude pointed out that this is a substantiation complaint not a denial of liability for the sum of USD 362,250. There was no denial by Crowley of the debt, just a request for a copy of the invoice showing the period and the coverage, a request which Latitude had passed on to its insurer and was awaiting a response. There was no basis on which the Adjudicator could have considered this a claim for a set-off of USD 362,250 let alone awarded it. Nothing which Crowley had said could rationally cause the Adjudicator to vary the conclusion which he had reached as to what Crowley owed, which is in substance what he said at para [354](xi).
[114] Latitude contended further that it can safely be assumed from the words he used in para [354](xi) that the Adjudicator was unpersuaded that Crowley had any right to reduce the sum he determined was payable because of a set-off of USD 362,250 in respect of Aurora National Insurance. Given the material before him, he did not need to spell this out, particularly given his finding about the absence of a Payment Statement. Such an assessment also falls within the general words he used about Crowley's set-off claims at paras [217] and [354](xix) - ie that he was not persuaded that any set-off exceeded the value of the guarantees that had been called up.
[115] Crowley complained that these submissions by Latitude descended into a merits review which is not the function of this Court.
[116] Crowley's claim to set-off the amount paid by for insurance because of lack of a substantiating invoice would have been adequately dealt with by the Adjudicator by application of his finding that, in the absence of a Payment Statement disputing any part of Latitude's Payment Claim, Crowley was liable to pay to Latitude the whole of the Payment Claim. He did not do so. Rather he disposed of the claim in the formulaic manner set out above.
[117] It may be that the reference to "the respective invoices ... in the Dropbox" was not intended to be a reference to any invoice in relation to the insurance (there wasn't one) but to the invoices relating to the Payment Claim; or it may be that the Adjudicator made an error in his consideration of Crowley's claim in relation to Aurora National Insurance and/or expressed himself badly in para [354](xi) of the Determination. However, any such error did not amount to a failure by the Adjudicator to perform his function under the Act. If there was an error, it was an error within jurisdiction.
[118] As Hodgson JA (Beazley JA agreeing) said in John Holland Pty Ltd v Roads and Traffic Authority of New South Wales[58] at [55]:
The relevant requirement of s 22(2) is that the adjudicator consider the provisions of the Act, the provisions of the contract and submissions duly made. If an adjudicator does consider the provisions of the Act and the contract which he or she believes to be relevant, and considers those of the submissions that he or she believes to have been duly made, I do not think an accidental or erroneous omission to consider a particular provision of the Act or a particular provision of the contract, or a particular submission, could either wholly invalidate a determination, or invalidate it as regards any part affected by the omission. One could express this by saying that such an accidental or erroneous omission does not amount to a failure to comply with s 22(2), so long as the specified classes of considerations are addressed; or alternatively, if one takes the view that s 22(2) does require consideration of each and every relevant provision of the Act and the contract and each and every submission duly made, the intention of the legislature cannot have been that this kind of mistake should invalidate the determination. In a case where there were 1,000 submissions duly made, an accidental failure to consider one of them could not reasonably be considered as invalidating a whole determination; and there is no basis for partial invalidation of a determination, that is, invalidation only of that part affected by the omitted submission. [emphasis added]
[119] The fourth example of non-engagement with the issues alleged by Crowley concerns a claimed set-off for amounts Crowley said it had paid to one of Latitude's sub-contractors, Endfire. In its Response, Crowley submitted that Latitude was seeking to recover amounts paid to Endfire in circumstances where Latitude had paid Endfire amounts vastly in excess of Endfire's original fixed-price subcontract sum (which was originally entered with Crowley but subsequently novated to Latitude) and where Latitude had not demonstrated that Endfire had complied with contractual preconditions to such increases.[59] This was repeated in the Watson Declaration.[60] Crowley's position was that the effect of this issue was that it had been overcharged by AUD 4,004,908.36.[61]
[120] In a letter dated 6 May 2025, Latitude submitted that the cost increases were attributable to design defects for which Crowley was responsible.
[121] In a letter dated 7 May 2025, Crowley provided a further response on this issue. In that letter, Crowley noted that the report provided by Latitude did not bear out the assertions of Latitude and that there was no evidence that Endfire had any proper or legal entitlement to payment for, amongst other things, delay costs.
[122] Crowley contended that the submissions made by the parties required the Adjudicator to determine (at a minimum):
(a) whether Crowley had previously reimbursed Latitude (with margin) in respect of amounts to which Endfire had no entitlement to payment pursuant to the fixed-price subcontract that had been novated to Latitude, including determining the conditions precedent to payment under the Endfire subcontract; and
(b) whether, to the extent that the Endfire costs exceeded the fixed-price subcontract sum, such additional costs were attributable to defects in a design provided by Crowley.
[123] The Adjudicator's only comment on this issue appears to be the single sentence in para [354](viii): "My determination in relation to this element has after proper review of the respective invoices is based on time and resources as listed on invoices in the Dropbox."
[124] Crowley contended that the Adjudicator's statement, that he has reviewed the invoices provided by Latitude, is unresponsive to whether Endfire had a contractual entitlement to such costs under its subcontract. The only available inference from that statement is that the Adjudicator did not consider the parties' submissions on this claim.
[125] Latitude responded that Crowley's complaint was, again, a non-substantiation complaint. It was not a true set-off or even a considered denial of liability for any particular sum. Crowley's complaint appears to be that Latitude had not established that Endfire had satisfied the usual preconditions in construction contracts for the notification and making of claims for EOTs. Crowley does not deny that these were valid EOT claims let alone provide a basis to support that denial.
[126] Latitude supported its submission to the Adjudicator that Crowley's case was so vague as to be meaningless and impossible to engage with by quoting Ms Watson:[62]
Crowley remains concerned that there are issues that remain to be identified with respect to at least part of this extreme increase in the fixed price subcontract value. Crowley is continuing to interrogate the available records and is also seeking further information through the Supreme Court proceeding that may assist in this regard_._
[127] Given that Crowley's position was, essentially, that it needed more information to make a decision, Latitude contended that the Adjudicator was entitled to deal with this claim by Crowley in the way he did.in particular given the absence of a Payment Statement under the Contract by Crowley.
[128] In light of the Adjudicator's determination of the effect of clause 9.2(d) of the Contract and clause 8 of the Heads of Agreement, I agree that, in the absence of a Payment Statement by Crowley, the Adjudicator was entitled to find that (essentially) Crowley had forfeited the entitlement to argue that amounts in the Payment Claim had to be substantiated in order to be payable and that includes substantiation of satisfaction of contractual preconditions by a subcontractor. The Adjudicator was therefore entitled to deal with this issue by simply accepting the invoices at their face value and performing the reconciliation which he undertook. There was no need to delve further into the issues raised by Crowley in order to perform his function under s 33 of the Act. The earlier determination about the effect of clause 9.2(d) of the Contract and clause 8 of the Heads of Agreement obviated the need to do so.
[129] As outlined above, given the Adjudicator's finding of the effect of clause 9.2(d) of the Contract and clause 8 of the Heads of Agreement; his related determination that Crowley had the onus of establishing its entitlement to any set-off and the amount of such set-off; and his determination that Crowley had not satisfied him that the amount of any set-off Crowley was entitled to claim did not exceed the value of the security it had called up, each of which were determinations he made in the performance of his function under the Act, in my view the Adjudicator was entitled to deal with Crowley's actual set-off claims, including the one relating to Endfire, in the way he did.
[130] Crowley's fifth and final example relates to the Adjudicator's treatment of Crowley's claim in relation to payments made for labour on weekends and public holidays.
[132] In a letter dated 6 May 2025, Latitude submitted that the claims it had made reflected the hours that had actually been worked, noted that the project had operated on a seven day work week and asserted that there was no requirement to provide timesheets verifying the time spent.
[133] Crowley contended that the submissions made by the parties required the Adjudicator to determine (at a minimum) the relevant terms of the Contract, including:
(a) whether the Contract entitled Latitude to payment for work performed on weekends and public holidays; and
(b) whether any entitlement to payment was conditional on timesheets being provided.
[134] The Adjudicator's only comment on this issue appears to be the single sentence in para [354](vi):
My determination in relation to this element has after proper review of the respective invoices is based on time and resources as listed on invoices in the Dropbox.
Crowley contended that that statement was not responsive to the issues raised by either party and once again demonstrates a complete absence of intellectual engagement by the Adjudicator.
[135] Latitude contended in this Court that this is not a true set-off or even a considered denial of liability for a particular sum. At its highest, it is a complaint about allegedly missing further substantiation of time worked as set out in invoices claimed in the Payment Claim and which Crowley had had for many months. Importantly, there is no denial that the work was done or of liability as such. Crowley's position was only that it needed more information to make a decision.
[136] Latitude also referred to what the Adjudicator said at para [357]:
Furthermore, the Respondent provided general reasons for not paying each head of claim, whilst not offering any alternate valuation to it. All reasons listed by the Respondent are addressed below where each claimed item is concerned.
[137] Latitude contended that, in addition to his identification and determination of this issue in para [354], the Adjudicator had already found that "analysing such data" (which includes the invoices in the Dropbox which claimed work time on weekends and public holidays) "is the task and duty of (Crowley's) contract administration team".[65] As a result, Crowley was obliged "to arrive at a valuation as opposed to blanket rejection of those claims (in the Payment Claim)",[66] and could only "withhold payment of disputed components".[67]
[138] Hence, Latitude contended, the Determination of this issue in para [354](vi) is supportable by (a) his finding that the absence of a Payment Statement precludes disputation and requires payment of the Payment Claim and also (b) his satisfaction from his "proper review" of the "time and resources as listed on invoices in the Dropbox" that he could accept the hours claimed on the face of Latitude's invoices. From that review of the detail, he was satisfied that the subject amounts were payable and no further verification was required as least for the purpose of determining the Payment Dispute.
[139] The finding by the Adjudicator that Crowley was obliged to pay any part of a Payment Claim not disputed in a Payment Statement served under the Contract, and that Crowley had failed to serve a Payment Statement disputing any part of the Payment Claim, means that the Adjudicator was entitled to take the invoices in the Dropbox at their face value and decide the Payment Dispute on that basis. He was also entitled to make the further findings set out at [75] above and to conclude that it was not necessary for him to try to work out the value of Crowley's set-offs, because Crowley had not satisfied him that they exceeded the value of the security that was called up by Crowley.
Ground 3: Has Crowley shown that the Adjudicator fell into jurisdictional error when he determined that he was not satisfied it was not possible to fairly make a determination because of the complexity of the matter or because the prescribed time or any extension of it was not sufficient?
[141] Section 33(1)(a)(iv)(A) of the Act provides that an appointed adjudicator must dismiss an adjudication application if satisfied that it is not possible to fairly make a determination because of the complexity of the matter.
[142] On Ground 3, Crowley cites the following authorities:
(a) A J Lucas Operations Pty Ltd v Mac-Attack Equipment Hire Pty Ltd,[68] in which Southwood J (with whom Riley J agreed) found that:
[33] The statutory criteria set out in s 33(1)(a)(i) to (iv) are of such a nature that the satisfaction of the adjudicator as to whether they have been fulfilled or not must be both reasonable and founded upon a correct understanding of the law. [R v Connell; Ex parte Hetton Bellbird Colleries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 430; Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118-119.] A reasonable and legally correct state of satisfaction is a necessary jurisdictional fact. If such a jurisdictional fact does not exist, an adjudicator would be acting in excess of jurisdiction if he made a determination of an application on the merits. [Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 per Gummow J at paras [127] to [140].] The adjudicator cannot give himself jurisdiction by erroneously deciding that the fact or event exists. [Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 per Gummow J at para [127]; R v Judges of the Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 214.] [emphasis added]
[44] The duty of the adjudicator to dismiss an application under s 33(1)(a)(iv) does not arise where the matter is in fact, objectively speaking, too complex to be dealt with fairly. It arises if the adjudicator "is satisfied it is not possible to fairly make a determination" for that reason...
[47] The Court of Appeal in AJ Lucas Operations Pty Ltd v Mac-Attack Equipment Hire Pty Ltd[70] ("AJ Lucas") held that a purported determination is reviewable by this Court where it is shown that the adjudicator's satisfaction as to the requirements of s 28(1) is either unreasonable or based on an incorrect understanding of the true construction of the Act which gives the adjudicator his jurisdiction to decide the adjudication on the merits. (In the case of a decision under s 33(1)(a)(ii) that will be s 33 and/or s 28; in the case of a decision under s 33(1)(a)(iv) that will be s 33.) [emphasis added]
[143] In support of Ground 3, Crowley noted that the adjudication application comprised 1,397 pages in hard copy and a USB flash drive containing 8,284 files/documents and one directory that contained a further 8,090 supporting invoices. The adjudication Response was also voluminous.
[144] Crowley contended that the Adjudicator abrogated his statutory duty because the reason he formed the view that the matter was not too complex was because he incorrectly considered that it was Crowley's job to analyze the voluminous documents rather than his own and because he incorrectly avoided considering the merits of the majority of Crowley's set-off claims (as discussed in Grounds 1 and 2). Crowley contended that that constituted a misunderstanding of his own obligations under the Act, which was the basis on which the Adjudicator considered the complexity issue.
[145] I have already dealt with these two contentions. In my view, the Adjudicator was not wrong in finding that it was Crowley's job to analyse the documents in the Payment Claim, to arrive at a valuation (as opposed to blanket rejection of the claims in the Payment Claim), and only to withhold payment of amounts disputed in a Payment Statement issued under the Contract. Clause 9.2(d) of the Contract obliges Crowley to set out its calculation of the amount certified to be owing and to provide reasons for any difference between the amount claimed in the Payment Claim and the amount certified as owing in the Payment Statement. But whether the relevant findings were correct or not is not the issue in this proceeding. Correct or not, such findings were made in the process of deciding the matter prescribed by s 33(1)(b) of the Act and were within the jurisdiction of the Adjudicator. The Adjudicator was also entitled to take those matters into account in performing the task imposed on him by s 33(1)(a)(iv)(A), to determine whether he was satisfied it was not possible to fairly make a determination because of the complexity of the matter. Crowley has not demonstrated that the Adjudicator misunderstood any of his obligations under the Act or otherwise committed any jurisdictional error in performing this task.
[147] There will be judgment for the first defendant.
[1] Response para [6]; Hearing Book Volume 3/Page 1885 ("HB")
[2] Response para [7]; HB 3/1885-1886
[3] Determination paras [176]-[178]; HB 2/908
[6] Response para [158]; HB 3/1916
[7] Determination para [218]; HB 2/918
[8] Response para [163]; HB 3/1917; Statutory Declaration of Angela Watson in support of the Response para [7.67]; HB 4/2115
[9] Determination para [354] (i) and (iii); HB 2/943
[10] There is a complaint by Crowley that the Adjudicator found that some invoices were duplicated but did not deduct the relevant sum from Latitude's claim. Latitude agrees. The amount at issue is relatively small. This was an error within jurisdiction.
[11] Determination para [354](xv); HB 2/944
[12] Response para [178]; HB 3/1919
[13] Response paras [184] and [185]; HB 3/1919
[14] Response para [158]; HB 3/1916; Statutory Declaration of Angela Watson paras [7.130] to [7.142]; HB 4/2129-2131
[15] Response para [17](c); HB 3/1888-1889
[16] Response paras [17] and [50](f); HB 3/1888 and 3/1895-1896
[17] Statutory Declaration of Angela Watson para [7.18]; HB 4/2104
[18] Determination paras [33] to [63]; HB 2/878-887
[19] Determination para [64]; HB 2/887
[20] Determination para [65]; HB 2/887
[21] Determination paras [163] to [165]; HB 2/905-906
[22] Determination paras [171] to [175]; HB 2/907-908
[23] Determination paras [176] - [178]; HB 2/908
[24] Determination para [200]; HB 2/911-913
[25] Determination para [201]; HB 2/913
[26] Determination para [202]; HB 2/914
[27] Determination para [215]; HB 2/916-918
[28] Affidavit of Ralph Gavin Hughes dated 4 April 2025 para [42]; HB 3/1962
[29] Affidavit of Ralph Gavin Hughes dated 4 April 2025 para [66]; HB 3/1975 - credit notes from ATF Services for AUD 8,642.51, one from Endfire for AUD 22,685.00 and one from Kakivic for USD 125,000.00
[30] Affidavit of Ralph Gavin Hughes dated 4 April 2025 para [68](c); HB 3/1976
[31] Determination paras [94] and [176] to [178]; HB 2/892 and 2/908
[32] Response para [6](b)(i)-(iv); HB 3/1885
[33] [2018] NTSC 91; (2018) 41 NTLR 243 at [43] ("ABB")
[34] James Engineering Pty Ltd v ABB Australia Pty Ltd [2019] NTCA 7; (2019) 42 NTLR 51 at [34]
[36] Determination para [216]; HB 2/918
[38] (2004) 61 NSWLR 421; [2004] NSWCA 394
[40] [2005] NSWSC 548; (2005) 21 BCL 383
[41] [1925] AC 578 at 603
[43] Samsung C&T Corporation v Loots [2016] WASC 330 at [247] - [248] per Beech J; Zurich Bay Holdings Pty Ltd v Brookfield Multiplex Engineering and Infrastructure Pty Ltd [2014] WASC 39 at [15]; BG Construction Pty Ltd v Citigate Properties Pty Ltd [2016] WASC 88 at [145] per Tottle J.
[46] Determination paras 215(i) - (xiv); HB 2/916 - 918
[47] Determination para [218]; HB 2/918
[52] [2017] NTSC 45 at [58]; This decision was reversed on appeal on a different ground. The reasoning in this paragraph was upheld by the Court of Appeal. JKC Australia LNG Pty Ltd v Inpex Operations Australia Pty Ltd & Ors [2018] NTCA 6 at [69]
[53] Response [173] - [177]; HB 3/1918 - 1919
[54] The 'Dropbox' folder was a directory on the USB drive provided by Latitude with the Adjudication Application which contained 8,090 invoices in support of the payment claims: Determination para [295]; HB 2/933
[56] Determination para [354](xiii) at HB 2/944
[57] Determination para [354](xi); HB 2/944
[59] Response [179]-[183]; HB 3/1919
[60] paras [7.96]-[7.108]; HB 4/2120-2123
[63] Response para [169]; HB 3/1918and Watson para [7.87] - [7.91]; HB 4/2119-2120
[64] Response paras [50]-[55]; HB 3/1895-1896
[65] Determination [95](iv); HB 2/892
[66] Determination [95](iv); HB 2/892
[67] Determination [215](xii); HB 2/917
Crowley Australia Pty Limited
Latitude 63 LLC & Anor
ABB Australia Pty Ltd v James Engineering Pty Ltd [2018] NTSC 91; (2018) 41 NTLR 243; Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd [2020] QSC 133; A J Lucas Operations Pty Ltd v Mac-Attack Equipment Hire Pty Ltd & Anor [2009] NTSC 48; A J Lucas Operations Pty Ltd v Mac-Attack Equipment Hire Pty Ltd [2009] NTCA 4; BG Construction Pty Ltd v Citigate Properties Pty Ltd [2016] WASC 88; Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394; Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215; (2023) 112 NSWLR 225; CH2M Hill Australia Pty Ltd & Anor v ABB Australia Pty Ltd [2016] NTSC 42; (2016) 41 NTLR 1; Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWCA 276; (2018) 98 NSWLR 712; INPEX Operations Australia Pty Ltd & Anor v JKC Australia LNG Pty Ltd & Anor [2017] NTSC 45; _James Engineering Pty Ltd v ABB Australia Pty Lt_d [2019] NTCA 7; (2019) 42 NTLR 51; JKC Australia LNG Pty Ltd v INPEX Operations Australia Pty Ltd [2018] NTCA 6; John Holland Pty Ltd v Roads and Traffic Authority of New South Wales [2007] NSWCA 19; K & J Burns Electrical Pty Ltd v GRD Group (NT) Pty Ltd & Anor [2011] NTCA 1; Laing O'Rourke Australia Construction v H&M Engineering and Construction [2010] NSWSC 818; Roberts v Hopwood; Samsung C&T Corporation v Loots [2016] WASC 330; Timwin Construction v Facade Innovations [2005] NSWSC 548; (2005) 21 BCL 383; Zurich Bay Holdings Pty Ltd v Brookfield Multiplex Engineering and Infrastructure Pty Ltd [2014] WASC 39, referred to
(2018) 41 NTLR 243
(2004) 61 NSWLR 421
(2023) 112 NSWLR 225
(2016) 41 NTLR 1
(2018) 98 NSWLR 712
(2019) 42 NTLR 51
(1944) 69 CLR 407
(1976) 135 CLR 110
(1999) 197 CLR 611
(1979) 143 CLR 190
(2009) 25 NTLR 14