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Adjudicator decisions when deciding on disputes (referred or not referred) made in error and the subsequent enforcement thereof by courts

12 December 2016

The Society of Construction law recently released an article by Mr. Daryl Royce, titled “Errors in Adjudicator’s Decisions: Right Questions, Wrong Answer”, which I thought is an interesting piece to share.

Briefly, the article turned around a dispute where the subcontractor claimed certain monies from the main contractor and the adjudicator deciding the dispute, decided in favour of the subcontractor by deciding that a certain amount is to be paid to the subcontractor. The issue turned around the calculation of the amount. At the time of the dispute, the works had not been completed, but the adjudicator in his decision dealing with the amount due to be paid to the subcontractor by the main contractor, deducted sums paid that “excluded retention from a gross sum that included retention”. What is the issue? Well seeing that the works had not been completed at time of dispute, no retention could have been due to the subcontractor.

The adjudicators decision had the effect that retention was released to the subcontractor. When the subcontractor then approached the court to enforce the adjudicators decision, various questions came into play, raised by the opposition, which were dealing inter alia regarding circumstances when an adjudicator makes a decision on a point that was never referred for decision, meaning issue on jurisdiction and or, as was held by the Court of Appeal later when this matter was referred to it, the adjudicator had not exceeded its jurisdiction, but gave the wrong answer to the question referred to him. It deals further whether such decision can still be binding and be enforced.

This article canvasses over very interesting topics for discussion, inter alia various tests that has been applied over the years by courts hearing enforcement applications, advantages and or disadvantages on courts’ intervention to make a further ruling on adjudicator’s decisions and or correcting and adjudicator’s errors made in adjudication proceedings.

For the full article, Click here and follow the instructions (in particular for non-registered individuals).
Author: Barry Herholdt, Associate