Decision
45 In Brodyn at [53], I set out what I considered to be at least some of the basic and essential requirements for there to be an adjudicator's determination under the Act, namely:
1. The existence of a construction contract between the claimant and the respondent, to which the Act applies (ss.7 and 8).
2. The service by the claimant on the respondent of a payment claim (s.13).
3. The making of an adjudication application by the claimant to an authorised nominating authority (s.17).
4. The reference of the application to an eligible adjudicator, who accepts the application (ss.18 and 19).
5. The determination by the adjudicator of this application (ss.19(2) and 21(5)), by determining the amount of the progress payment, the date on which it becomes or became due and the rate of interest payable (ss.22(1)) and the issue of a determination in writing (ss.22(3)(a)).
46 At [55] in Brodyn, I suggested that these requirements may not be exhaustive, and also that, in addition to compliance with such requirements, it was essential to the existence of a determination that there have been 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.
47 Mr. Inatey did not suggest that there was failure to comply with any of the first four of the five requirements mentioned above, or that there was any relevant denial of natural justice. Rather, he suggested that the fifth requirement, the making of the determination, involved compliance with s.9; that is, that it involved, in a case where the contract made express provision as to the calculation of the amount of progress payments, making a calculation in accordance with the terms of the contract. As I understood it, he also suggested, perhaps more faintly, that to do otherwise would be not to make a bona fide attempt to exercise the relevant power.
48 In my opinion, this argument fails, essentially for the reasons set out in Siemens at pars.[33] and [34].
49 In my opinion, an error of fact or law, including an error in interpretation of the Act or of the contract, or as to what are the valid and operative terms of the contract, does not prevent a determination from being an adjudicator's determination within the meaning of the Act. Section 22(2) does require the adjudicator to consider the provisions of the Act and the provisions of the contract; but so long as the adjudicator does this, or at least bona fide addresses the requirements of s.22(2) as to what is to be considered, an error on these matters does not render the determination invalid.
50 Accordingly, even if s.34 does not invalidate the relevant parts of cl.42, the adjudicator's determination would not be invalid; and it is not necessary for me to express a final view as to whether s.34 has that effect in this case.
51 However, I am of the view that it is strongly arguable that s.34 does have that effect, on either or both of two grounds.
52 First, consistently with the view expressed in Siemens at [35], the procedure in cl.46 might be regarded as merely a procedure for identifying when and by whom a calculation is to be made. The basis for the expert's decision set out in cl.40.2 could then be regarded as the relevant express provision made by the contract with respect to the calculation of the amount of progress payments under cl.42.2, with which s.9(a) engages. If that view is correct, then the relevant sentences in cl.42 would preclude the payment of progress payments calculated in accordance with the terms of the contract, and thus fall foul of s.34.
53 Second, although "progress payment" is defined in s.4 of the Act to mean "a payment to which a person is entitled under s.8", and although s.4 does not contain a qualification by reference to context, nevertheless in my opinion it is plain that, in some places in the Act, the expression "progress payment" is used in a way that includes a more generalised meaning. For example, s.3(2) cannot mean that the means by which the Act ensures that a person is entitled to receive "a payment to which a person is entitled under s.8" is by granting a statutory entitlement to such a payment, regardless of whether the relevant construction contract makes provision for "payments to which a person is entitled under s.8". Plainly, in s.3(2), progress payment is meant in a more general sense; and the same must be true of its use in s.3(1). Similarly, where s.8(2)(a) refers to the date determined under the contract as the date on which a claim for a progress payment may be made, this provision was not meant to be ineffectual unless the contract provision relates to payments to which a person is entitled under s.8: again, in my opinion, plainly a more general sense of the phrase is intended to be included: cf. Quasar at [21]. And in my opinion, the more general sense is also intended in s.8(1), because otherwise s.8(1) would be circular and vacuous.
54 On that basis, in my opinion a provision of a contract as to the determination of reference dates, or as to the calculation of the amount of progress payments, could be such as to restrict the operation of the Act within the meaning of s.34, even though the Act in s.8(2)(a) and s.9(a) expressly defers to such provisions. For example, if a contract provided for yearly reference dates, or provided that progress payments should be calculated on the basis of 1% of the value of work done, in my opinion such provisions could be so inimical to s.3(1), s.3(2) and s.8(1) as to be avoided by s.34. If, contrary to the first ground, cl.46 is a provision as to calculation, the relevant parts of cl.42 could still be seen as restricting the operation of the Act. In my opinion, it is preferable not to finally determine this question in a case where it is not necessary to do so.
55 As noted in Brodyn at [84]-[88], there may be remedies available to a respondent by way of stay or injunction where a respondent alleges that there was a serious error in an adjudicator's determination, and that money paid over would be irrecoverable.