Pursuant to section 21(4) of Building and Construction Industry Security of Payment Act 1999 No 46 (NSW)(SOPA), adjudicators have powers to request further submission from either party provided that the other party has an opportunity to reply.
Adjudicators can exercise this power any time after an initial submission has been submitted. The adjudicator does not need to wait for the Adjudication Response to be served when issuing a request for further submission.1
How far do these powers extend?
Section 21(4) of SOPA does not explicitly limit what can be requested by an adjudicator in the further submission. However, the adjudicator must ensure that there is no denial of natural justice to a party in requesting further submissions.
It will be a denial of natural justice if the adjudicator:
- fails to request that the other party make submissions;2
- allows a party to make submissions which were not raised in the payment schedule;3 or
- does not respond to a party's objection to another party's further submissions which contained additional material that went beyond the adjudicators' request.4
Key takeaway
Whilst section 21(4) of SOPA is a powerful tool at the disposal of adjudicators, adjudicators must still exercise their powers carefully by being aware of the limits of their powers. If an adjudicator goes beyond the power granted by section 21(4), their determination may be set aside on the basis that the adjudicator denied a party natural justice.
If you are a party to an adjudication where an adjudicator has requested further submissions, you must limit your submissions to the specific issues in the adjudicator's request. Any further submission beyond the requested issues should be disregarded by the adjudicator and if referred to by the adjudicator may jeopardise the adjudication.
Footnotes
1 12 Bridge Street Epping Pty Ltd atf 12 Bridge Street Epping Unit Trust v D.R. Design (NSW) Pty Ltd [2022] NSWSC 866.
2. NJ Fifty Property Investments Pty Ltd v Barry J O'Mara [2006] NSWSC 428, [52].
3. State Water Corporation v Civil Team Engineering Pty Ltd [2013] NSWSC 1879, [44].
4. Minesco Pty Ltd v Anderson Sunvast Hong Kong Ltd [2017] VSC 299, [119-121].
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