FACTS:
John Holland, the main contractor on a new wharf and coal loading facility in North Queensland
subcontracted Walz Marine Services to build the extension of the wharf which already extended
1km out to sea. The Contract contained provisions for delays caused by weather. Walz submitted
a Payment Claim which included delay costs and the matter went to adjudication. The
adjudicator allowed the amount claimed in the Payment Claim. John Holland applied to have the
determination set aside arguing the certain contractual requirements had not been met and the
adjudicator made an error by not properly valuing the claim.
ISSUES:
Whether the adjudicator erred in valuing the claim, by not considering contractual requirements
not raised by John Holland in the Payment Schedule nor considering those contractual
requirements himself.
Whether if an error existed was it a jurisdictional error or an error in the interpretation of the
contract.
FINDING:
The Court held that the adjudicator had not erred by not considering the reasons outlined in the
adjudication response where they were not raised in the Progress Schedule as the dispute is
defined by the Payment Claim and Payment Schedule.
QUOTE:
Wilson J at [51 -52]:
Counsel for John Holland submitted that the adjudicator erred in not examining
the claim to see if the elements of the claim for delay and disruption had been
established…I do not accept that this is what the adjudicator did…he considered
whether he could be satisfied that inclement weather events meeting the
thresholds had occurred… and whether the costs claims had been calculated
correctly
[at 54]
[W]here there is a payment schedule as well as a payment claim, the factual and
legal issues… are defined by those documents. If the validity of the claim
depends on certain acts… failure expressly to put those facts in issue in the
payment schedule may amount to an admission of them.
IMPACT:
Failure to expressly deny facts in the Payment Schedule may amount to an admission that those
facts are not disputed. Therefore, Contract Managers must be careful to fully define all their
reasons for non-payment in the Payment Schedule to avoid being prevented from raising these
reasons later.