TWT Property Group Pty Ltd v Cenric Group Pty Ltd

The issues

1. The parties have very sensibly reduced the issues requiring determination.
2. There are two issues remaining.
3. The first is whether it was an abuse of the process of the Act for Cenric to make the 10 December 2018 payment claim by reason of an Anshun estoppel arising from Cenric's unreasonable failure to propound in the 2018 Proceedings the claim for work done prior to its exclusion from the site on 19 March 2018. That claim was made for the first time in the 10 December 2018 payment claim.
4. It is common ground that if an Anshun estoppel did arise, Cenric may not proceed with the 1 March 2019 adjudication application.
5. The second issue, which only arises if there is no Anshun estoppel, is whether the 22 February 2019 adjudication is amenable to challenge on the basis that, as a matter of objective fact, the 10 December 2018 payment claim does relate to work carried out within 12 months of service of the payment claim.

Decision

1. Cenric's failure to propound its claim for work done to 19 March 2018 in the 2018 Proceedings was unreasonable such that Cenric is now bound by an Anshun estoppel from making a claim for the work done on site to 19 March 2018.
2. It follows that service of the 10 December 2018 payment claim was an abuse of process, as is the 1 March 2019 adjudication application, which is based on that payment claim. I shall make orders restraining it from proceeding with an application.
3. It is accordingly unnecessary to decide whether the 22 February 2019 adjudication was valid, as it was based on the 14 January 2019 adjudication application which was also based on the 10 December 2018 payment claim.
4. Were it necessary for me to reach a conclusion as to the status of the 22 February 2019 adjudication, I would have concluded that the determination was void on the basis of a breach of natural justice.

TWT excludes Cenric from the site

1. On 9 March 2018 TWT sent to Cenric a "Notice to Show Cause" pursuant to cl 39.2 of the contract. In that notice, TWT contended that Cenric had "substantially departed from the construction program without reasonable cause" and required Cenric to show cause why TWT should not exercise its rights under cl 39.4 of the contract to take the work out of Cenric's hands.
2. On 19 March 2018, TWT served on Cenric a notice pursuant to cl 39.4 of the contract stating that it intended "to take the remaining works out of your hands".
3. On 20 March 2018, Cenric removed its equipment from the site and, since 23 March 2018, has not entered the site or carried out any work on the site.
4. Also on 20 March 2018, TWT entered into a contract with Bundanoon under which Bundanoon agreed to carry out the relevant sandstone excavation work.

The 2018 Proceedings

1. On 29 March 2018, Cenric commenced the 2018 Proceedings against TWT and Bundanoon.
2. As against TWT, Cenric claimed damages "by reason of" TWT's alleged breach of contract "including royalties forgone" since 19 March 2018 because of TWT's "unlawful attempt to take out the [contract] works from [Cenric]".
3. As against Bundanoon, Cenric claimed royalties in relation to the harvested sandstone.
4. Cenric made no claim against TWT for the value of the work it had done on the site to the date of its exclusion from the site on 19 March 2018.
5. TWT made a cross-claim against Cenric in which it alleged that Cenric had "failed to proceed with due expedition and without delay" and sought "liquidated damages". It also sought "an account or inquiry into damages".
6. In its response to that cross-claim, Cenric alleged, under the heading "Nature of the Dispute": "Cenric has carried out works under the contract and issued payment claims to TWT from time to time. On a proper reconcile [sic: reconciliation] of the payments made and owing under the contract, an amount of $570,318.64 (excl. GST) remains owing to Cenric. Cenric claims a set off for those unpaid amounts against any liability to TWT."
7. Cenric made a corresponding allegation as a part of its "Contentions" as follows: "On a proper reconciliation of the payments received and due under the Head Contract, TWT is liable to pay Cenric an amount of $570,318.64 (excl. GST)."
8. Mr Hicks SC, who appeared with Mr Byrne for Cenric, submitted that these contentions should be read in the light of TWT's prayer for an "account or inquiry into damages" and that the "reconciliation" sought by Cenric should be seen as one sought by Cenric in any such "inquiry" rather than in the 2018 Proceedings themselves.
9. I do not accept that submission. There is no such qualification in Cenric's contentions. Cenric was asserting that, as a matter of fact, and "on a proper reconciliation" (that is, one already performed by it), TWT "is liable" to pay it the sum referred to.
10. The 2018 Proceedings were listed for hearing before McDougall J commencing on 30 July 2018.
11. Two weeks earlier, on 16 July 2018, TWT's solicitor wrote to Cenric's solicitor pointing out that Cenric's response to TWT's cross-claim had raised "for the first time claims for payment [for amounts allegedly due for works done to 19 March 2018], not included in your client's List Statement" and contending that Cenric was thereby splitting its case. TWT's solicitor foreshadowed a possible application to strike out Cenric's cross-claim response.
12. Cenric's then solicitor replied: "The claims the subject of the set-off against your client relate to payment claims under the Head Contract and the return of retention monies held by TWT. The relevant amounts are therefore not related to each other, and have been properly and fully pleaded. Our client has not 'split its case' by raising a claim for damages, and an entirely separate set-off amount in response to your client's cross-claim."
13. On 29 July 2018, the day before the commencement of the trial before McDougall J, Cenric's solicitor wrote to TWT's solicitor as follows: "…in the interest of narrowing the issues between our respective clients so as to ensure the real issues of our client's proceedings be dealt with as efficiently as possible at the hearing set down for 30 and 31 July 2018 (the Hearing), our client makes the following proposal on an open basis: (a) in relation to the question of the true and proper reconciliation of monies owing under the Head Contract, including both the costs to complete and our client's set-off, (the Reconciliation Question), the Court restrict its consideration to the question of whether or not the works were lawfully taken out of the hands of our client by your client; (b) our respective clients do not agitate, at the Hearing, the balance of the Reconciliation Question; and (c) the balance of the Reconciliation Question be referred to an independent expert (either to be agreed by the parties or appointed by the Court) for binding determination at a later date (with that determination being made in accordance with the Court's finding at (a))."
14. An issue in the proceedings before me was whether TWT agreed to this proposal.
15. Thus Mr Hicks submitted: "Cenric contends that the parties agreed or adopted a mutual position in the [2018 Proceedings] that: (a) in relation to the question of the true and proper reconciliation of monies owing under the Head Contract, including both the costs to complete claimed by TWT and the claim of Cenric for contract works performed raised by way of set-off (the Reconciliation Question), the Court was to restrict its consideration to the question of whether or not the works were lawfully taken out of the hands of Cenric by TWT; (b) Cenric and TWT would not agitate the balance of the Reconciliation Question at the hearing in the [2018 Proceedings]; and (c) the balance of the Reconciliation Question was to be determined later in another forum." And "…it appears clear that Cenric and TWT agreed or adopted a position that the reconciliation of the amounts due under the Contract (described as the Reconciliation Question in the correspondence at the time) would be determined on another occasion and subject to the findings made as to whether TWT had validly taken the works out the hands of Cenric."
16. For the reasons set out below, I am not satisfied there was any such agreement or convention.
17. Cenric's solicitor's letter of 29 July 2018 was addressed to TWT's solicitor Mr David Vaughan.
18. Mr Vaughan deposed that he did not respond to the letter.
19. Mr Hicks submitted that Mr Vaughan's failure to go further and assert that TWT had not in the 2018 Proceedings agreed to the proposal in the 29 July 2018 letter gave rise to an inference that the proposal was accepted. Mr Hicks referred to the familiar observations of Handley JA in Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 that the failure by a party to examine a witness in chief on some topic when the witness was likely to give evidence about that topic, indicates "as the most natural inference that the party fears to do so".
20. But, assuming that Mr Vaughan could have admissibly said anything on the topic, his failure to say that Cenric's solicitor's 29 July 2018 proposal had not been accepted cannot, without more, prove that it was.
21. It may enable the Court to draw, with greater confidence, an inference to that effect if the evidence otherwise justified the inference: see Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63]. But my attention has not been drawn to any evidence which would justify such an inference being drawn. To the contrary, there is evidence before me that suggests no such agreement was made.
22. Cenric did not call its then solicitor or any other witness to prove the existence of any such agreement or understanding.
23. The question of Cenric's set-off to TWT's cross-claim was mentioned during opening submissions to McDougall J.
24. Counsel then appearing for TWT said: "… we had [brought an] application to strike out [Cenric's] defence [to TWT's cross-claim], which was where a set-off claim was raised. We abandoned that on the basis that [Cenric] was confined to the evidence [already served]."
25. Counsel's reference to a strike out application was, evidently, a reference to the threat made in TWT's solicitor's letter of 16 July 2018 to which I have referred at [40]. I was informed that a notice of motion to that effect had been served but not in fact filed.
26. Counsel then appearing for Cenric said: "I think we accept we can't put any more evidence on that topic [i.e. the set-off], so the issue will be determined by just looking at what evidence we have put on."
27. Those statements by counsel contain no suggestion that there was any agreement in relation to the "Reconciliation Question" referred to in Cenric's solicitor's letter of 29 July 2018.
28. Mr Hicks submitted that this exchange amounted to no more than "musings" of counsel in relation to the matters that should be in an agreed statement of issues. However, on my reading of the transcript to that point, that is not correct. Counsel were addressing the substance of the issues before the Court.
29. The matter was raised again in final oral submissions when counsel for TWT said: "We've dealt with and told them to retain in relation to set-off claims and retention monies. Mr Tambouras [Cenric's Contracts Administrator] advanced a case for a substantial set-off, that doesn't seem to be pursued anymore."
30. In response to an enquiry from McDougall J, counsel for Cenric confirmed that: "We don't have a claim for the substantial set-off".
31. Mr Hicks submitted that TWT's counsel's statement to McDougall J that "we've dealt with and told them to retain in relation to set-off claims and retention monies" somehow bespoke an acknowledgment by TWT of an agreement or understanding to the effect proposed in Cenric's solicitor's letter of 29 July 2018.
32. I am unable to glean such a conclusion from TWT's counsel's remarks.
33. Overall, I am not satisfied that there was any agreement or understanding to effect contended for by Mr Hicks.

McDougall J's judgment of 18 October 2018: Cenric Group v TWT Property Group [2018] NSWSC 1570

1. McDougall J held that TWT was not entitled to issue the 9 March 2018 Notice to Show Cause and was not entitled to exclude Cenric from the site.
2. His Honour concluded that: "Cenric has an entitlement to damages but has not proved that it has suffered any damage."
3. His Honour made no reference in the judgment to Cenric's set-off claim, no doubt because he had been informed by Cenric's counsel that the claim was not pressed.

Anshun principles

1. In a proceeding before a court of competent jurisdiction, the parties are required to bring forward their whole case.
2. A party will not be permitted to raise, in a subsequent proceeding, a claim or an issue of fact or law that is so connected or so relevant to the subject matter of the first proceeding that it was unreasonable of that party to have not made the claim or raised the issue in the first proceeding.
3. Factors relevant to that question include, but are not confined to: 1. Whether the claim sought to be made in the second proceeding arises substantially out of the same facts as those made in the first proceedings; and 2. Whether the claim in the second proceedings, if successful, would result in a judgment conflicting with that given in the first proceeding.
4. The principle applies whether or not the failure to propound the claim or issue was deliberate or as a result of negligence, inadvertence or accident.
5. These principles derive from such cases as Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598-602 (Gibbs CJ, Mason and Aickin JJ); [1981] HCA 45, Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [22] (French CJ, Bell, Gageler and Keane JJ), Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33 at [3] (Allsop P, Handley JA agreeing at [92]) and Zavodnyik v Alex Constructions Pty Ltd (2005) 67 NSWLR 457; [2005] NSWCA 438 at [34] (Handley JA, with Mason P and Latham J agreeing).
6. Cenric's claim for payment for work done on the site to 19 March 2018 arose out of the same facts as the claims it propounded before McDougall J in the 2018 Proceedings.
7. On the face of it, it was unreasonable, indeed inexplicable, that Cenric did not include this claim in the 2018 Proceedings.
8. The omission cannot have been a matter of oversight, as Cenric raised it as an answer to TWT's cross-claim. That matter was abandoned by Cenric's then counsel; presumably because he judged, correctly as it has turned out, that TWT's cross-claim would fail.
9. The only matter advanced before me to justify Cenric's omission to make this claim in the 2018 Proceedings was the proposal made in Cenric's solicitor's letter of 29 July 2018.
10. However, Cenric has failed to prove that that proposal was accepted or that there was any understanding or convention between the parties to the effect of that proposal.
11. In any event, as Mr Docker, who appeared for TWT, pointed out, the proposal in the 29 July 2018 letter was that the Reconciliation Question be referred out for determination as a part of the 2018 Proceedings and in accordance with McDougall J's findings in those proceedings about whether TWT had lawfully taken the works out of Cenric's hands.
12. The 29 July 2018 proposal did not suggest the possibility of the Reconciliation Question be determined otherwise than in the 2018 Proceedings.
13. I am satisfied, in these circumstances, that Cenric is, by reason of its conduct in the 2018 Proceedings, estopped from bringing a claim for work done to 19 March 2018 in later proceedings.
14. Mr Hicks accepted that, if that were my conclusion, it would follow that it was an abuse of process of the Act for Cenric to achieve a like result by propounding the same claim in the 10 December 2018 payment claim and thereafter in the 14 January 2019 and 1 March 2019 adjudication applications.
15. As sought by TWT in its Summons, I propose to make declarations to this effect and to make orders restraining Cenric from proceeding with the 1 March 2019 adjudication application.
16. Those conclusions are sufficient to dispose of the proceedings.
17. However, in deference to the submissions advanced by both counsel in relation to the second issue, I will deal with it, albeit briefly.

The second issue - the 22 February 2019 adjudication

1. Section 13(4)(b) of the Act relevantly provides: 13 Payment claims (4) A payment claim may be served only within - … (b) the period of 12 months after the construction work to which the claim relates was last carried out …
2. Section 13(4)(b) requires that some of the construction work for which payment is sought was performed within 12 months of service of the payment claim: Estate Property Holdings Pty Ltd v Barclay Mowlem Construction Ltd (2004) 61 NSWLR 515; [2004] NSWCA 393 at [18] (Hodgson JA; Mason P and Giles JA agreeing).
3. An issue before the adjudicator was whether, for the purposes of s 13(4)(b), any or some work forming part of the payment claim was performed within 12 months of service of the payment claim; that is, since 14 December 2017.
4. The adjudicator concluded that: "It appears to be common ground that the only work undertaken during the 12 months preceding the payment claim was excavation of the sandstone… It appears common ground that the payment claim did not include any amount for the excavation of sandstone… It follows that I am not satisfied that [the 10 December 2018 payment claim] is a valid payment claim for the purposes of the Act."
5. The adjudicator was correct to conclude that "the only work undertaken during the 12 months preceding the payment claim was excavation of the sandstone".
6. But it was not correct for the adjudicator to conclude that: 1. "the payment claim did not include any amount for excavation of sandstone"; and 2. this was "common ground".
7. Thus, as Mr Docker accepted, as a matter of fact the payment claim did include a claim for work done since 14 December 2017.
8. The payment claim specified two amounts for "Excavation" but did not state on its face whether the excavation related to sandstone.
9. However, Cenric stated clearly in its 14 January 2019 adjudication application that the work it was doing in March 2018 involved "extraction of sandstone blocks".
10. Further, in a letter Cenric sent the adjudicator on 5 February 2019 in answer to the adjudicator's request for further submissions, Cenric referred to the two "Excavation" amounts in the payment claim and said that those items related to "excavating material (which happened to be sandstone) from the site in March 2018". Cenric continued by stating that this "should not be controversial" and, in a footnote to that statement, referred to "excavating sandstone" and to "sandstone blocks … being excavated and removed from the site".
11. An adjudication determination can be reviewed by the Court, but only for jurisdictional error on the part of the adjudicator: e.g. Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [2], [29] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
12. In Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339 at [13]-[15] Basten JA (with whom Meagher and Leeming JJA agreed): "It is a fundamental principle that the engagement of a statutory power may depend either upon the existence of an identified state of affairs, or a state of satisfaction of the decision-maker as to an identified state of affairs. In the first category, the actual state of affairs, being the criterion of engagement of the power, is described as a 'jurisdictional fact', meaning that the lawful exercise of the power may ultimately depend upon a finding of a court exercising judicial review as to whether or not the required state of affairs existed. The second category is sometimes also said to involve a jurisdictional fact, but only in the sense that the relevant fact is an opinion formed by the decision-maker; in that case a reviewing court can only be concerned with the existence and lawful formation of the opinion. There are aspects of the Security of Payment Act which fall into each category. The first category includes the service of a payment claim within the period specified by s 17(2)(a) of the Act. In most cases that matter is readily determined and little inconvenience is generally caused by identifying it as an essential precondition to the exercise of the relevant powers. The Security of Payment Act does not refer to the opinion or satisfaction of the adjudicator. Nevertheless, there being no right of appeal, the adjudicator's findings with respect to matters of fact, within jurisdiction, will be unreviewable. Further, there being no review for errors of law on the face of the record, the adjudicator's determination of legal issues will also be unreviewable." (Footnotes omitted.)
13. The "jurisdictional fact" raised by s 13(4)(b) of the Act is whether the payment claim was served within 12 months after the construction work to which the claim relates was last carried out.
14. A matter dividing the parties is whether this "jurisdictional fact" falls within Basten JA's first category, which the parties referred to as "Category One", or his Honour's second category ("Category Two").
15. If this "jurisdictional fact" is within Category One, and as it is common ground that as a matter of fact the payment claim did include a claim for work done since 14 December 2017, the adjudication must be set aside.
16. On the other hand, if the "jurisdictional fact" in question is within Category Two, and as there was no doubt that the adjudicator formed an opinion about that matter, albeit an erroneous one, the only question is whether the opinion was formed "lawfully".
17. The majority of the Full Court of the Supreme Court of South Australia has expressed the view, albeit in obiter and at a level of generality, that the question of the time for service of a payment claim is a jurisdictional fact within Basten JA's Category One.
18. Thus Blue J, with whom Lovell J agreed (Hinton J dissenting), said in Maxcon Constructions Pty Ltd v Vadasz (No 2) (2017) 127 SASR 193; [2017] SASCFC 2 at [119]-[120]: "There are several provisions of the Act which define or affect the jurisdiction of an adjudicator and the criteria enlivening the exercise of jurisdiction by an adjudicator. Without necessarily being exhaustive, they may be assumed to include: 1 the existence of a construction contract (as defined in s 5) between the parties; 2 service by a claimant of a payment claim in accordance with s 13(2) within the time limit in s 13(4); 3 application in writing by a claimant for adjudication of a payment claim made to an authorised nominating authority in circumstances prescribed by s 17(1) and (2) within the time limit in s 17(3)(c), s 17(3)(d) or s 17(3)(e) identifying the payment claim and the payment schedule (if any) to which it relates; 4 the adjudicator is eligible under s 18 and appointed by the chosen authorised nominating authority and accepts appointment pursuant to s 19; 5 the adjudicator determines the amount of the progress payment (if any) to be paid by the respondent to the claimant, the date on which it became or becomes payable and the rate of interest payable thereon in accordance with s 22(1); 6 the adjudication determination is in writing and includes the reasons for the determination in accordance with s 22(3); 7 the adjudicator considers only the matters identified in s 22(2) and considers an adjudication response only if it is made within the time limit in s 21(2) and a payment schedule was served within the time limit in s 14(4) and where applicable s 17(2)(b). If objectively a defined criterion is not present, or if the adjudicator wrongly determines that it is present, the adjudicator will not have jurisdiction to adjudicate the dispute or (depending on severance principles) the relevant element of the dispute." (Emphasis added. Footnotes omitted.)
19. In Fitz Jersey v Atlas Construction Group [2017] NSWSC 340 at [25]-[26], McDougall J said in the context of an amendment application: "It may be argued that what Blue J said at [119] was not essential to his reasons for deciding the case as he did. Even if that submission were correct, it is a seriously considered statement in what was in effect the majority judgment of an intermediate appellate court dealing with very similar legislation. It may be that, on a final hearing, a judge of this court would decide that what Blue J had said was wrong, and (not being part of the precise reason for decision) not binding. Regardless, the developer's submission on s 13(4)(b) cannot be said, as effectively the builder's opposition in this case requires, to be hopeless. I am not to be taken as expressing a view that Blue J was wrong. On the contrary, I think that there is substantial support for his inclusion of s 13(4)(b) within the list of jurisdictional matters. Support comes, among other things, from the statutory language 'may be served only within… the period of 12 months after the construction work… was last carried out'. As Spigelman CJ and I pointed out in Chase Oyster Bar [Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190], the use of the formulation 'may only' has been held to indicate a requirement that must be satisfied if jurisdiction is to be enlivened, or a condition of the grant of jurisdiction[: see David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 275-277; [1995] HCA 43]."
20. My attention was also drawn to what fell from Sackar J in Bauen Constructions Pty Ltd v Sky General Services Pty Ltd [2012] NSWSC 1123. His Honour said at [60]-[63]: "Bauen submits that an adjudicator's failure to consider one of the statutory functions entrusted to him results in jurisdictional error and a denial of natural justice. It is further submitted that acting in good faith requires an adjudicator to turn his or her mind to the statutory task at hand. Engagement intellectually with the dispute the parties have framed and dealing with the dispute in a reasoned not perverse, arbitrary or capricious way is vital: [Clyde Bergemann Senior Thermal Pty Ltd v Varley Power Services Pty Ltd [2011] NSWSC 1039 at [64] (McDougall J)]. Is it submitted by Sky General that compliance with s 13(4)(b) is not a 'jurisdictional fact' being a condition of the right to make an adjudication application. It is merely a question of fact to be decided by the adjudicator whose decision on the question is not subject to review. Sky General submits that the adjudicator properly considered and applied s 13(4)(b). I do not agree. I consider Bauen's arguments to be correct. In other words the adjudicator was distracted in my view by the defects liability and miscalculated the relevant time frame for the purposes of the Act. It follows the adjudicator committed a jurisdictional error and the adjudications should be quashed."
21. I do not think that his Honour was intending to express a view about whether or not the adjudicator's decision in that case was "subject to review". As I read his Honour's reasons, his statement that "I do not agree" was directed to the submission that his Honour recorded in the last sentence of the previous paragraph to the effect that the adjudicator had "properly considered and applied s 13(4)(b)".
22. Section 13(4)(b) of the Act posits an enquiry as to whether, as a matter of fact, the payment claim relates to work carried out within a particular period. That involves consideration of the payment claim itself. This is clearly a Category Two matter and one for the adjudicator: e.g. Downer Construction (Australia) Pty Ltd v Energy Australia (2007) 69 NSWLR 72; [2007] NSWCA 49 at [87] (Giles JA). It also involves consideration of the factual question of when the "construction work" took place. That factual enquiry might be quite complex.
23. The nature of that enquiry may be contrasted with matters "readily determined" with "little inconvenience" such as whether an adjudication application was notified within 20 business days following the due date for payment (see s 17(2)(a) of the Act), a matter which, as Basten JA observed, has been held to be within Category One: see Icon Co at [14]; Chase Oyster Bar at [53], [96], [285]).
24. To my mind, the enquiry called upon by s 13(4)(b) is quintessentially one that the legislature left to the adjudicator and to thus be one within Basten JA's Category Two.
25. For those reasons, were it necessary for me to decide the question, I would respectfully disagree with the obiter remarks made by Blue J in Maxcon and with McDougall J's tentative remarks in Fitz Jersey.
26. In this case, the particular error that the adjudicator made was to overlook Cenric's clear submission that the excavation it carried out, and to which the payment claim referred, was in respect of sandstone and to, wrongly and without notice to Cenric, conclude that it was "common ground" that it did not.
27. The adjudicator could only have reached this conclusion by failing to consider Cenric's clear submission to the contrary.
28. Section 22(2)(d) of the Act requires an adjudicator to consider "the payment schedule … to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the respondent in support of the schedule".
29. A failure by an adjudicator to consider such submissions is a breach of natural justice and, if material, renders the adjudication determination void. Thus Hodgson JA in Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 at [57] said: "…if there is a failure by the adjudicator to receive and consider submissions, occasioned by breach of these provisions [including s 22(2)(d)], the determination will be a nullity."
30. The error of the adjudicator could not have been a mere misunderstanding of Cenric's submission. Rather it must have been a failure to consider the submissions at all. If the adjudicator had considered Cenric's submissions, particularly those he received on 5 February 2019 in response to his request, he could not have failed to conclude that the payment claim related to sandstone excavation, and thus to work done since 10 December 2017.
31. This was a breach of natural justice and one which was material. Had the adjudicator considered Cenric's submissions, he was bound to have come to a different view: see Laing O'Rourke Australia Construction Pty Ltd v H&M Engineering & Construction Pty Ltd [2010] NSWSC 818 at [26]-[29] (McDougall J).
32. It was also procedurally unfair for the adjudicator to say that it was "common ground", when it was plainly not, that the payment claim did not include any amount for excavation of sandstone.
33. For those reasons, had it been necessary for me to deal with the 22 February 2019 adjudication determination, I would have found it to be void.

Conclusion

1. Counsel should bring in short minutes to give effect to these reasons.

Amendments 20 February 2020 - Amended [111] line 2 to remove "in" before Hodgson. 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: 20 February 2020