- Wednesday, February 20, 2019
Author: Tim Coleman
So, you have successfully argued that an adjudicator acting under Security of Payment legislation failed to undertake the task required and, therefore, their determination has been quashed. But now what? Is the adjudication determination at an end or will it be remitted back to the adjudicator so they can correct errors in it and issue a determination?
Partner, Tim Coleman and Law Graduate, Emer Sheridan, discuss the circumstances in which a quashed adjudication determination will, or will not, be handed back to an adjudicator.
Orders for remitter
The party who has successfully made application to have the determination quashed will in most cases be the party who is the respondent to the adjudication application and who will be arguing that the adjudicator should have awarded a lesser amount than the amount determined by the adjudicator. In that case the party who was successful in quashing the determination will also have been successful in reducing the amount payable to Nil. Accordingly the party who was successful in quashing the determination would have a preference for not having the matter remitted.
Remitter is the most common outcome which follows the quashing of an adjudication determination. It has been described as ‘the usual form of relief which may be granted on the quashing of the original decision on the grant of certiorari’. In the process of remittal, the court gives jurisdiction back to the adjudicator so that they can re-determine the matter in accordance with law.
However, despite its frequent use, the parties cannot assume that the matter will, or necessarily should, be remitted back to the adjudicator.
When remitter cannot be granted
In circumstances where an adjudication determination is quashed on the basis that the adjudicator lacked jurisdiction to deal with the matter then it will not be possible to remit. As set out by McDougall J in Richard Crookes Construction Pty Ltd v CES Projects (Aust) Pty Ltd, there is no point in remitting such a matter because the issue of jurisdiction has ‘necessarily been determined by the quashing order’.
Additionally, if the entirety of a determination has been quashed such that a remittal would result in a ‘full re-adjudication’ – as opposed to a review of discrete parts – the court similarly cannot remit. In Shape Australia Pty Ltd v The Nuance Group (Australia) Pty Ltd, Digby J found that such a remittal ‘would be at odds with the strict timing requirements of the SOP Act’ including those which provide timing guidelines as to the submissions of the parties.