An adjudicator 'considers' a prohibited new defence under s 88(3) of the BIFA Act where the adjudicator gives it attention, has regard to it, and applies an active intellectual process to it — even if the adjudicator does not treat the new defence as decisive. The question of whether work was 'removed' from a contract under s 98(3) is a broad factual inquiry not limited to when a formal replacement contract was concluded. The court has inherent power to remit to adjudication but may decline where the matter has already been remitted and the adjudication decisions are provisional.
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