Getting Paid: Part 3 – So you have lost your adjudication – the end of the beginning

You lost your adjudication, it is the end of the beginning. For many unsuccessful participants in an adjudication the fight has just begun. This article will look at:

1. judicial review;
2. Section 101 Building Industry Fairness (Security of Payment) Act 2017(BIFA) and unjust enrichment;
3. issue estoppel.

Judicial Review

As a respondent, you may have the option to have the adjudication judicially reviewed. Grounds for judicial review are limited to:

1. jurisdictional error which is when the adjudicator made a decision it did not have the power to make or failed to do something required of them in accordance with the BIFA;
2. denial of natural justice where the process leading to the outcome was unfair. An example of this is if the adjudicator did not provide a party an opportunity to make submissions before making a decision or the adjudicator was biased.

Section 101 BIFA and Unjust enrichment/Restitution

Remember the adjudicated decision is interim only and s101 of the BIFA allows your rights under the contract to be determined on a final basis through court proceedings.

In court proceedings you may have an entitlement to restitution arising from unjust enrichment. Unjust enrichment is when one party has benefited at the expense of the other party in circumstances that is considered unjust. The party in detriment will seek restitution from the party that has benefited from them. To be successful in your claim for unjust enrichment you will need to prove that:

1. the other party was enriched;
2. the enrichment was at your expense; and
3. the enrichment was unjust.

Issue estoppel

It is also common for claimants to be unsuccessful with an adjudication result. As a claimant, you are unable to adjudicate on the same issue. This is referred to as issue estoppel. The intention of issue estoppel is to prevent a party from adjudicating against the other party in relation to an issue that has already been decided on in a previous adjudication.

A claimant may however be able to commence proceedings as per its contractual rights or through other dispute resolution methods provided for in the contract to recover an amount owed to them.

Lamont Project and Construction Lawyers’ team has extensive knowledge on the adjudication process and litigation related to building and construction disputes. If you have any questions about any matters raised in this above article as it relates to your specific circumstances, please contact Lamont Project & Construction Lawyers.

The content of this article is for information purposes only; it does not discuss every important topic or matter of law, and it is not to be relied upon as legal advice. Specialist advice should be sought regarding your specific circumstances.

Contact: Peter Lamont or Vanessa George

Email: [email protected] or [email protected]

Phone: (07) 3248 8500

Address: Suite 1, Level 1 349 Coronation Drive, Milton Qld 4064

Postal Address: PO Box 1133, Milton Qld 4064