Melaleuca View Pty Ltd v Sutton Constructions Pty Ltd [2019] QSC 226 The applicant challenged by way of certiorari adjudicator’s decision on the grounds, inter alia, that the adjudicator had made a jurisdictional error because the adjudicator erred in finding that the applicant failed to provide a payment schedule.
Although she ultimately rejected the applicant’s challenge to the adjudicator’s decision, Brown J accepted that the existence of a payment schedule is a jurisdictional fact.
The applicant cited Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 as support for its submission that the finding that there was no payment schedule served by it was indeed a finding as to a jurisdictional fact. [40].
Her Honour was inclined to agree. Firstly, she observed that his Honour Muir J’s reasoning in Heavy Plant Leasing Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2013] QCA 386, which she applied, directly supported the notion that the determination by an adjudicator as to whether or not a document is a payment schedule is a jurisdictional fact, (albeit she acknowledged that that matter was decided in relation to the former Act).
In addition, she noted that it is made plain by the wording of s 88 of the Building Industry Fairness (Security of Payment) Act 2017, which prescribes the “only” matters the adjudicator is permitted to consider in making a decision, that the determination of whether or not a document constitutes a “payment schedule” amounts to a jurisdictional fact, and one which must be determined before consideration of the matters provided under s 88(2) and the making of any decision.
The scope of the decision-making process then undertaken is directly influenced by the presence or absence of a payment schedule and where it is found that no schedule has been provided, thereafter a respondent is unable to make any response in opposition to the claimant prior to an adjudication.
Her Honour regarded those matters as lending support to the conclusion that the existence of a payment schedule is a jurisdictional fact. [44]. In the event, her Honour concluded that the adjudicator did not err in determining that there was no payment schedule. [72].