Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd

[2012] WASC 304

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Administrative Law
2. › Privative clauses
3. › Construction of privative clause
4. › Whether s 46(3) Construction Contracts Act 2004 (WA) excludes application for declaration that adjudicator's determination is invalid
5. › Construction Contracts Act 2004 (WA), s 46(3)
1. Administrative Law
2. › Jurisdictional facts
3. › Distinction between narrow and broad jurisdictional facts
4. › Whether matters in s 31(2)(a) Construction Contracts Act 2004 (WA) are jurisdictional facts in the broad or narrow sense
5. › Standard of judicial review applicable to adjudicator's findings
6. › Construction Contracts Act 2004 (WA), s 31(2)(a)
1. Administrative Law
2. › Judicial review
3. › Jurisdictional error
4. › Inferior courts and analogous decision-makers
5. › Whether adjudicator's failure to consider setoff claim constituted jurisdictional error
6. › Whether adjudicator's failure to consider setoff claim constituted denial of procedural fairness
7. › Construction Contracts Act 2004 (WA), ss 31, 32
1. Building and Construction
2. › Construction Contracts Act 2004 (WA)
3. › Adjudication of payment disputes
4. › Enforcement of adjudicator's determination
5. › Leave to enforce under s 43(2)
6. › Principles applicable to grant of leave
7. › Whether contractual setoff constitutes 'payment' under s 39(1)
8. › Construction Contracts Act 2004 (WA), ss 39, 43

Quick Take

The matters in s 31(2)(a) of the Construction Contracts Act 2004 (WA) are jurisdictional facts in the 'broad' sense, meaning a court reviewing an adjudicator's finding on compliance with s 26 does not inquire into whether the application was in fact served in time, but only whether the adjudicator's conclusion was unreasonable, based on misconstruction, or affected by irrelevant considerations. A contractual right of setoff does not constitute 'payment' under s 39(1) of the Act, so a party cannot resist enforcement of a determination on the basis that the determination sum has been satisfied by setoff. Section 45(3) does not prohibit the use of adjudication materials in proceedings challenging the validity of a determination.