The obligation to 'consider' under s 22(2) of the Building and Construction Industry Security of Payment Act 1999 (NSW) requires an active process of intellectual engagement — adjudicators must turn their minds to, grapple with and form a view on all matters they are required to consider, including the respondent's submissions and supporting documentation. A dismissive rejection of submissions without engaging with their substance does not satisfy this obligation. Where a claim is presented as a global or total cost claim, the adjudicator must engage with the principles governing such claims and the respondent's evidence directed to non-compensable causes of delay. The materiality of a denial of natural justice is assessed by whether the submissions, properly considered, could have induced a different view — not by reference to the quantum affected relative to the overall claim.
The full text is available to signed-in members, including the 38 later cases that cite this judgment.
4 of the 38 citing cases carry a classified treatment. How each court treated it is available to signed-in members.