The Court held that an adjudicator's erroneous rejection of adjudication response documents (expert costings and witness statements post-dating the payment schedule) as not 'duly made' under s 22(2)(d) of the SoPA was not itself jurisdictional error, following Builtcom. However, the adjudicator's decision to exclude those documents on a ground not raised by either party and not reasonably foreseeable — without first inviting submissions under s 21(4) — constituted a denial of procedural fairness that was jurisdictional error, because it was material to the defects allowance where the adjudicator treated the builder's costings as uncontested when the owner had in fact provided competing estimates. The Court applied s 32A severance, setting aside only the portion of the determination affected by the error (the difference between the owner's defects costings and the builder's conceded figure), and left open whether the distinction between negative and affirmative defences under ss 14(3) and 20(2B) limits the scope of the 'duly made' requirement for adjudication response submissions.
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