defendant. Summons dismissed. Parties to bring in short minutes to give effect to these reasons. Costs to be determined on the papers.
Key principles
An adjudicator's failure to refer expressly to a particular contractual clause does not alone establish jurisdictional error where the adjudicator acknowledged the statutory...
Whether an adjudicator 'considered' the provisions of the construction contract is a question of fact to be determined by the Court, and may be resolved against a plaintiff where...
A mere disagreement with an adjudicator's conclusion or an assertion that the adjudicator may have come to the wrong decision is not, without more, a basis to set aside the...
Issues before the court
Whether the adjudication determination was void for jurisdictional error because the adjudicator failed to 'consider' the provisions of the...
Whether the Court should, in exercise of its discretion, refuse relief even if jurisdictional error were found, and whether part of a determination...
Whether a party's failure to develop a contractual argument in the adjudication response precludes reliance on that argument in proceedings to set...
Plain English Summary
Diona challenged an adjudicator's payment determination arguing the adjudicator failed to consider a contractual time-bar (clause 40) which would negate $30,000 of extensions of time. The Court found the adjudicator had acknowledged the obligation to consider the contract and the absence of an express mention of clause 40 did not prove jurisdictional error, especially where Diona had not clearly developed the clause 40 point in the adjudication response. The Court dismissed Diona's summons. The judge noted recent authorities and legislative amendment (s 32A) that clarify future power to sever determinations affected by jurisdictional error, but s 32A does not apply retrospectively.
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Deep Dive
2,001 words · generated 29/06/2026
What happened
Facts
Diona Pty Ltd subcontracted safety-upgrade works on the Great Western Highway to Downer EDI Works Pty Ltd under a Subcontract dated 7 May 2019. An adjudicator (the second defendant) determined on 16 April 2020 that Diona should pay Downer $430,990.13. Diona sought orders in the Supreme Court (Technology and Construction List) declaring the adjudication determination void and injuncting Downer from seeking an adjudication certificate or enforcing the determination. An ex parte injunction was granted by Ball J until the return date, and the matter proceeded before Stevenson J for final determination on 28 April 2020 (with written submissions to follow). Downer agreed not to enforce the determination pending the Court's decision.
Cited legislation
1 cited instrument linked from this judgment.
Dispute narrowed
Although the adjudicator determined $430,990.13, the contested legal issue as litigated boiled down to $30,000. Downer had been allowed 15 days of extensions of time (EOT 18 and EOT 21) at $2,000 per day, totalling $30,000. Diona argued those EOTs were time-barred by clause 40 of the Subcontract and that, therefore, the adjudicator should have deducted $30,000, making the payable amount $400,990.13.
Procedural posture
Diona filed an adjudication response that mentioned clause 40 and that determinations of extensions of time by Diona were 'final and cannot be disturbed except by raising a Claim under the Contract'. However, the Court found that Diona did not clearly develop in the adjudication materials the precise constructional argument that clause 40 operated to extinguish the entitlement to EOT 18 and 21 in the factual circumstances. The adjudicator addressed extensions of time by reference to clause 28 (how EOTs are assessed) but did not expressly refer to clause 40 in the decision.
Relief sought and outcome
Diona argued the adjudicator failed to 'consider' the contract as required by s 22(2)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW) because the adjudicator did not address clause 40, and accordingly the determination was void for jurisdictional error. Stevenson J rejected that argument and dismissed Diona's summons, concluding that Diona had not shown the adjudicator did not consider the construction contract or that jurisdictional error occurred.
Why the court decided this way
Legal constraint: s 22(2)(b)
Section 22(2)(b) requires an adjudicator to consider the provisions of the construction contract when making a determination. Earlier appellate authority (Cockram) was relied upon by the parties to frame the test: if an adjudicator failed to 'consider' material contractual terms that were relied upon by a party, there could be jurisdictional error.
Key factual and procedural reasons for dismissal
The adjudicator expressly acknowledged the statutory obligation to consider the contract (the adjudicator's decision recorded that the Act at s 22(2)(b) 'requires the adjudicator to consider the provisions of the construction contract', the judge quotes this at paragraph [5.7] of the adjudicator's determination). The Court treated this as evidence the adjudicator was aware of the duty.
The adjudicator considered the extension of time issue by reference to clause 28; he did not explicitly record consideration of clause 40. The Court recognised several innocent explanations for the absence of express reference: the point may not have been sufficiently raised by Diona in the adjudication response; the adjudicator may have misunderstood Diona's argument; or the adjudicator may have considered and rejected the argument on its merits.
Critically, Diona did not clearly articulate the constructional argument based on clause 40 in the adjudication materials. The Court emphasised that whether an adjudicator 'considered' the contract is a question of fact, to be resolved by reference to the adjudication materials and the determination itself. The absence of explicit reference to clause 40 in the determination, standing alone, was insufficient to infer jurisdictional error.
The Court also emphasised that an adjudicator may be wrong about a contractual entitlement (here, the EOTs), but error on the merits is not a ground to set aside an adjudication in the absence of jurisdictional error.
Conclusion drawn
On the balance of the adjudication documents, the Court was not prepared to infer the adjudicator failed to consider the contract. Diona therefore failed to establish jurisdictional error and the court dismissed the summons.
Before and after state of the law
Before this decision
The High Court and intermediate appellate decisions had established that s 22(2)(b) requires an adjudicator to consider the contract; courts had held that failing to consider relevant contract terms could amount to jurisdictional error that rendered an adjudicator's determination void. NSW authorities tended to treat jurisdictional error in adjudication as rendering the determination void as a single determination of a single payment claim, although there had been some movement in the jurisprudence.
YTO and uncertainty about severance
The Court referred to the decision of the NSW Court of Appeal in YTO Construction Pty Ltd v Innovative Civil Pty Ltd [2019] NSWCA 110 as introducing uncertainty about whether a court could sever parts of a determination affected by jurisdictional error (as distinct from setting aside the whole determination as void).
Legislative change clarifying remedial power (prospective)
Stevenson J noted that Parliament inserted s 32A into the Act, giving the Supreme Court explicit power to set aside the whole or any part of an adjudicator's determination where a jurisdictional error is found, and to identify and set aside only the part affected while confirming the remainder. The judge emphasised that s 32A is not retrospective and therefore did not assist Diona in this case.
After this decision
The decision reaffirms that:
Absence of express reference to a clause in an adjudicator's determination is not automatically jurisdictional error.
The court will examine the adjudication materials to see whether a contractual point was truly presented and required consideration.
Courts are likely to be cautious about inferring jurisdictional error when the complaining party did not clearly articulate the argument to the adjudicator.
The insertion of s 32A alters the remedial landscape prospectively by authorising severance where jurisdictional error is demonstrated.
Key passages with plain-English translation
Court records adjudicator's acknowledgment of duty (quoted from the adjudicator at [5.7])
Court text: "The Act at section 22(2)(b) requires the adjudicator to consider the provisions of the construction contract when making the determination."
Plain English: The adjudicator knew he had to take the written subcontract into account when deciding the payment dispute.
Court on missing reference to clause 40
Court text: "There are a number of possible reasons why the Adjudicator did not refer to cl 40 of the Contract in his consideration of the matter."
Plain English: The judge listed perfectly reasonable explanations why the adjudicator did not mention clause 40; none proves the adjudicator ignored the contract.
Court on merit error not equating to jurisdictional error
Court text: "The Adjudicator may have come to the wrong decision about Downer's entitlement ... But that, without more, is not a basis to set aside the determination."
Plain English: If the adjudicator made a mistake about whether Downer deserved the extra days, that alone does not mean the adjudication must be overturned.
Court's conclusion
Court text: "I find that Diona has failed to establish a basis to quash the Adjudicator's determination."
Plain English: The Court rejects Diona's case to void the adjudication decision.
Court on s 32A
Court text: The Court quoted s 32A and noted it permits severance of a determination by the court in future cases, but it is not retrospective.
Plain English: New law now lets the court cut out only the bad part of an adjudication decision, but that change does not apply to this dispute.
What fact patterns trigger this precedent
This decision will be especially relevant where:
A party challenges an adjudication on the ground that the adjudicator did not 'consider' a contractual provision that, if applied, would reduce the claim; and
The complaining party did not clearly or fully articulate the contractual construction or time-bar argument in the adjudication materials (application or response), so the adjudicator had little or ambiguous material to work from; and
The adjudicator's determination addresses the general issue (for example, extensions of time) but does not explicitly cite the particular clause the losing party relies on.
In such patterns, courts will:
Scrutinise the adjudication materials to determine whether the contract provision was properly presented and whether the adjudicator had a realistic opportunity to consider it; and
Be reluctant to infer jurisdictional error from the mere absence of an express mention in the determination.
How later courts have treated it
Immediate judicial context
The judgment engages with a line of cases on jurisdictional error in adjudications: John Holland, Trysoms, Anderson Street Banksmeadow, Rhomberg, Hanson and BM Alliance. Stevenson J cites them to outline the prior approach that jurisdictional error rendered an adjudication void, and to identify tensions introduced by YTO.
Legislative response and effect
Importantly, s 32A was inserted into the Act to address uncertainty about severance and remedial powers. Stevenson J observed that s 32A clarifies the court's power prospectively to set aside whole or part of an adjudicator's determination when jurisdictional error is found.
Practical consequence for later cases
After this decision, lower and intermediate courts will likely follow the cautious approach emphasised here: a party must show the adjudicator did not consider relevant contractual provisions, not merely that the adjudicator did not cite them or reached an outcome the party dislikes. Where the adjudicator acknowledged the duty to consider the contract and the complaining party did not present a clear contractual construction in adjudication materials, courts will be slow to infer jurisdictional error.
Still-open questions
The fine line between 'consideration' and 'application'
The decision affirms that 'consideration' is required by s 22(2)(b), but it leaves open how explicit an adjudicator's reasoning must be. The Court declined to infer failure to consider from non-citation alone; however, there will be contested factual situations where the adjudication materials and decision may more strongly suggest non-consideration. The parameters of that inquiry will continue to develop.
The role of the clarity of submissions in adjudication
The judgment places weight on whether a party clearly articulated the contractual point in adjudication materials. But how detailed does that articulation need to be to obligate an adjudicator to address it expressly? The decision points to fact sensitivity; further cases will illustrate thresholds.
Severance in the pre-s 32A environment
Although s 32A now clarifies future power to sever, many disputes arising before its insertion (or where retroactivity issues arise) will still pose problems about whether part of a determination can be preserved. Courts will need to continue to reconcile pre-existing authorities with the new statutory position where transitional issues appear.
Discretion to refuse relief where jurisdictional error proved
Stevenson J noted (obiter) existing authorities about the circumstances the court may decline relief (e.g., delay, failure to exhaust remedies, futility). The precise contours of that discretion in the adjudication setting, and the weight to be given to commercial considerations or undertakings (such as Downer's practical offer regarding the $30,000), remain for further clarification.
Degree of scrutiny of an adjudicator's reasoning
The decision reiterates that judicial review is concerned with jurisdictional error rather than merits. There remains an unresolved tension about when courts should 'look behind' an adjudicator's statement of reasons to infer whether contractual provisions were meaningfully considered; future appellate guidance could sharpen the standard.
Concluding practical takeaways
Practitioners seeking to challenge an adjudication on the ground the adjudicator failed to consider contractual provisions must ensure those provisions and the precise constructional argument are clearly and fully articulated in the adjudication materials. Absent that, courts will be reluctant to quash determinations purely because a clause is not expressly cited. Where a discrete monetary component of a determination is alleged to be affected, the recent statutory amendment (s 32A) gives courts prospective power to sever, but practitioners should note non-retrospectivity where applicable.
By a Subcontract Agreement ("the Contract") dated 7 May 2019, the plaintiff, Diona Pty Ltd subcontracted to the first defendant, Downer EDI Works Pty Ltd, certain work in relation to safety upgrades on the Great Western Highway at Blackheath.
On 16 April 2020 the second defendant, an Adjudicator appointed under the Building and Construction Industry Security of Payment Act 1999 (NSW), determined that Diona should pay Downer $430,990.13.
Diona commenced these proceedings on 24 April 2020 seeking a declaration that the determination was void and an injunction restraining Downer from requesting an adjudication certificate or filing same as a judgment debt.
On 24 April 2020, Ball J as Duty Judge granted, ex parte, such an injunction up to 5.00pm on 28 April 2020.
The matter was listed for hearing before me on that day for argument as to whether the injunction should be continued until the final hearing.
In submissions served the previous evening Downer, through its counsel Mr Robertson, indicated that it did not propose to serve evidence and that it was in a position to proceed to a final hearing on 28 April 2020.
Through my associate, I informed the parties that I was available to conduct a final hearing on 28 April 2020, if that was agreed. However, Diona, through its counsel, Mr Le Plastrier, indicated that it was not in a position to proceed to a final hearing.
Accordingly, the matter proceeded for some time as an application by Diona for interlocutory relief. However, after Mr Robertson had concluded his submissions, and after a short adjournment, counsel reached an agreement whereby the matter could proceed on a final basis, taking into account the matters put orally on 28 April 2020, together with submissions put in writing over the next few days.
In the meantime, Downer undertook to take no steps to obtain an adjudication certificate until I gave judgment.
[3]
The ambit of the dispute
Although the Adjudicator's determination was for $430,990.13, the amount in dispute between the parties is now only $30,000.
Part of Diona's claim against Downer was for liquidated damages.
One of Downer's arguments was that it was entitled to set off against that claim an amount of $30,000 on account of two extensions of time, totalling 15 days at a daily rate of $2,000. Downer contended it had this right under cl 28 of the Contract. The parties referred to these extensions of time at "EOT 18" and "EOT 21".
Diona's case was that Downer was not entitled to EOT 18 or EOT 21 because, by reason of provisions in cl 40 of the Contract, the claims had been made out of time, had been so determined by Diona's representative, and were "absolutely barred"; subject to Downer availing itself of the dispute resolution provisions in cl 41 of the Contract: which it did not do.
Thus, the effect of Diona's case was that the Adjudicator should have determined that Diona pay Downer $400,990.13, rather than $430,990.13.
[4]
Diona's case
In its Technology and Construction List Statement, Diona put its case this way:
"[Diona] contends that the Adjudication Determination is void on the basis that the [Adjudicator] failed to come to a view as to what amount is properly payable on the true merits of the payment claim insofar as:
1. The Adjudication Application and the Adjudication Response each identified EOT18 and EOT21 as claims for extensions of time that [Diona] had rejected;
2. The Adjudication Response identified that:
1. the determination of claims for extensions of time were final and could not be disturbed other than by way of a claim under the contract between the parties (the Contract);
2. the Contract contained a time bar on the making of a claim under the Contract.
1. The Adjudication Determination failed to give any reference to, or consideration of, whether each of EOT18 and EOT21 were time-barred under the Contract given that each had previously been rejected by [Diona] in reaching the conclusion that [Downer] was entitled to fifteen days for EOT18 and EOT21."
As finally developed orally, Mr Le Plastrier's put the matter a little differently.
Mr Le Plastrier's submission was that the Adjudicator had failed to address his statutory function so far as concerns the extension of time issue because he had not, as s 22(2)(b) of the Act required him to do, "considered" the "provisions of the construction contract".
The contractual provisions that the Adjudicator failed to consider were those in cl 40 of the contract which, Mr Le Plastier submitted, put an end to Downer's entitled to the extensions of time EOT 18 and EOT 21.
Mr Le Plastrier referred to Basten JA's observation in Cockram Construction Pty Ltd v Fulton Hogan Construction Pty Ltd [2018] NSWCA 107 at [10] and [11]:
"[10] The particular complaint raised by the respondent was that the Adjudicator had disregarded the terms of the contract. The point was expressed in various ways, with varying rhetorical emphasis.
[11] The claim had substance if it could be said that the Adjudicator failed to 'consider' the terms of the contract in so far as they were relevant to an issue in dispute and relied on by a party. That is because s 22(2)(b) requires the Adjudicator 'to consider' the provisions of the construction contract from which the application arose."
To consider that argument it is necessary to turn to Donia's Adjudication Response and the Adjudication Determination itself. That is because the question of whether the Adjudicator "considered" the provisions of the contract is a question of fact.
[5]
The Adjudication Application, Response and Determination
In its Adjudication Application, Downer devoted a number of pages to its contentions concerning extension of time and, in particular, its asserted entitlement to EOT 18 and EOT 21.
In its Adjudication Response, Diona referred to the provisions in cl 40 of the contract and stated:
"Determinations of claims for:
…
(B) Extension of time
By Diona are final and cannot be disturbed except by raising a Claim under the Contract, see relevant clauses of the Subcontract".
In the section of the Adjudication Response dealing with Diona's claim for liquidated damages, and under a sub-heading "Diona's Entitlement under the Subcontract to set-off Liquidated Damages", Diona stated that "in respect of Diona's contractual entitlement under the subcontract to set-off Liquidated Damages" it "repeats and relies" on a number of earlier paragraphs, including the one I have set out in the previous paragraph.
On the question of extension of time, Diona simply said:
"(iv) Downer has claimed Extensions of Time under the Subcontract in the amount of 45 days.
(v) Diona has:
(a) granted 20.9 days;
(b) reject[ed] all other requests for extension of time."
Diona did not otherwise engage with Downer's contentions concerning EOT 18 and EOT 21.
In particular, Diona did not in its Adjudication Response develop the argument Mr Le Plastrier put to me that, on the proper construction of cl 40 of the Contract, and in the events that happened, Downer was no longer entitled to maintain an entitlement to EOT 18 or EOT 19
The Adjudicator dealt with the question of Diona's claim for liquidated damages and Downer's contention that it was entitled to set off the amounts allegedly due by reason of EOT 18 and EOT 21 (ie the $30,000) over some two pages of the Determination.
In the course of considering Diona's contentions concerning liquidated damages, the Adjudicator said at [5.7]:
"[Downer] suggests that an adjudicator must consider the provisions in the construction contract but does not have to strictly apply the terms of the contract or resolve the dispute between the parties regarding liquidated damages. [Downer] refers to the judgment in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) CLR 1 (Probuild) to support this submission. The section of the judgment in Probuild referred to by [Downer] does not support this suggestion. The Act at section 22(2)(b) requires the adjudicator to consider the provisions of the construction contract when making the determination." (Emphasis added.)
[6]
Discretion
Mr Robertson submitted that had I concluded that the Adjudicator did act beyond jurisdiction I should in any event have refused Diona relief as a matter of discretion.
That was because, Mr Robertson submitted, in that hypothetical circumstance:
1. the Adjudicator's foray beyond jurisdiction was only in respect of the $30,000 associated with EOT 18 and EOT 21 out of a total Determination of $430,990.13; and
2. Downer had in effect agreed to forgo the $30,000 as it had undertaken in its List Response that if the Court found such jurisdictional error it would not enforce the Determination if Diona promptly paid it the amount of the Determination less $30,000 (ie $430,990.13 less $30,000 = $400,990.13).
In view of my conclusion that the Adjudicator did not act beyond jurisdiction, it is not necessary for me deal with this contention.
However, I should record that Mr Le Plastrier submitted that this course would not have been open to me and that the circumstances in which the Court can refuse relief, notwithstanding a finding of judicial jurisdictional error, were limited to cases where:
1. the applicant had not exhausted other remedies;
2. there be an excessive delay by the applicant in prosecuting its case; or
3. the making of an order would be futile.
Mr Le Plastrier referred to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [51] (Gaudron and Gummow JJ; McHugh J agreeing), and the discussion of that case in Lee v Minister for Immigration and Citizenship [2007] FCAFC 62 at [45] (Besanko J, Moore J agreeing).
I also observe that there are decisions in this Court to the effect that, if an adjudication determination is infected by jurisdictional error it is void, not voidable and that the Court ought not exercise its discretion to, as it were, allow the determination to the extent that it is not infected by jurisdictional error: for example see John Holland Pty Ltd v Roads and Traffic Authority of New South Wales [2007] NSWCA 19 at [55] (Hodgson JA; Beazley JA agreeing) and Trysoms Pty Ltd v Club Constructions (NSW) Pty Ltd [2007] NSWSC 1298 at [16] (Hammerschlag J).
I referred to some of these authorities in Anderson Street Banksmeadow Pty Ltd v Helcon Contracting Australia Pty Ltd [2013] NSWSC 657.
[7]
Conclusion
The Summons should be dismissed.
The parties should bring in short minutes to give effect to these reasons.
I will determine argument as to costs on the papers.
[8]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 01 May 2020
Summons dismissed. Parties to bring in short minutes to give effect to these reasons. Costs to be determined on the papers.
That passage makes clear that the Adjudicator understood that he was required to consider the provisions of the Contract.
The Adjudicator then dealt with Diona's claim for liquidated damages and Downer's contention that it was entitled to EOT 18 and EOT 21. The Adjudicator dealt with Downer's EOT 18 and EOT 21 entitlements by reference only to cl 28 of the Contract (which, as I have said, set out the circumstances in which Downer could make a claim for an extension of time) but without any reference to cl 40 of the Contract, nor to Diona's contention, that I have set out at [22] and [24].
The question is, should it thereby be inferred that, despite having acknowledged in terms that he was obliged to consider the provisions of the Contract, the Adjudicator did not do so.
I am not prepared to make this finding.
There are a number of possible reasons why the Adjudicator did not refer to cl 40 of the Contract in his consideration of the matter.
As Mr Robertson submitted, "the adjudicator may well have come to the view that in circumstances where [Diona] did not clearly articulate such argument, that that was a point that didn't need to be dealt with".
Or it may be that the Adjudicator misunderstood Diona's argument. As I have said, it was not put forward with great clarity in the Adjudication Response. And Mr Le Plastrier eschewed any misunderstanding by the Adjudicator of Diona's argument as a basis to contend for jurisdictional error.
The Adjudicator may have come to the wrong decision about Dower's entitlement to EOT 18 and EOT 21. But that, without more, is not a basis to set aside the set aside the determination.
I find that Diona has failed to establish a basis to quash the Adjudicator's determination.
There is also Queensland authority to the same effect: BM Alliance Coal Operations Pty Limited v BGC Contracting Pty Limited [2015] 1 Qd R 228; [2013] QCA 394 at [70]-[71] (Muir JA; Holmes JA and Ann Lyons J agreeing).
Some uncertainty appears to have arisen in this area by reason of the decision of the Court of Appeal in YTO Construction Pty Ltd v Innovative Civil Pty Ltd [2019] NSWCA 110.
Ball J referred to that decision recently in Rhomberg Rail Australia Pty Ltd v Concrete Evidence Pty Ltd [2019] NSWSC 755 at [25] as follows:
"Prior to the decision of the Court of Appeal in YTO Construction Pty Ltd v Innovative Civil Pty Ltd [2019] NSWCA 110, it was generally accepted in New South Wales at least that the effect of a jurisdictional error was to render a determination void, on the basis that a determination is a single determination of a single payment claim: see Fulton Hogan Construction Pty Ltd v Cockram Construction Ltd [2018] NSWSC 264, and the cases cited there. However, it is accepted that any relief given by the Court in respect of jurisdictional error is discretionary and, in some cases, the Court has made it a condition of exercising that discretion that the plaintiff undertake to pay that portion of the claim that is unaffected by the error: see, for example, Emergency Services Superannuation Board v Davenport [2004] NSWSC 697. Nonetheless, without discussing the earlier authorities, the Court of Appeal appears to have reached the conclusion in YTO Construction that part of a determination affected by error can be severed from that part that is not."
Later in the Hanson Construction Materials Pty Ltd v Brolton Group Pty Ltd [2019] NSWSC 1641, Ball J said at [44] (albeit in obiter):
"The parties provided the Court with extensive submissions on whether it had power to grant conditional relief in this case. It is not necessary to review the relevant authorities in detail. I accept Brolton's submission that the recent trend in the authorities in New South Wales is to the effect that the Court does have power in effect to sever that part of a determination that is within jurisdiction from that part which is not and to grant relief in relation to the latter on condition that the claimant pays the former: see YTO Construction Pty Ltd v Innovative Civil Pty Ltd [2019] NSWCA 110; Rhomberg Rail Australia Pty Ltd v Concrete Evidence Pty Ltd [2019] NSWSC 755; CC Builders (Aust) Pty Ltd v Milestone Civil Pty Ltd [2019] NSWSC 1251."
There, it appears, the matter has rested.
For the future, the question is moot as the matter has now been clarified by insertion into the Act of s 32A, which provides:
32A Finding of jurisdictional error in adjudicator's determination
(1) If, in any proceedings before the Supreme Court relating to any matter arising under a construction contract, the Court makes a finding that a jurisdictional error has occurred in relation to an adjudicator's determination under this Part, the Court may make an order setting aside the whole or any part of the determination.
(2) Without limiting subsection (1), the Supreme Court may identify the part of the adjudicator's determination affected by jurisdictional error and set aside that part only, while confirming the part of the determination that is not affected by jurisdictional error. (Emphasis added.)
It is common ground that this section has no retrospective effect and does not apply to the present case.