[2014] WASC 348

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS

CITATION : RE SCOTT JOHNSON; EX PARTE DECMIL

AUSTRALIA PTY LTD [2014] WASC 348

CORAM : BEECH J

HEARD : 18 SEPTEMBER 2014

DELIVERED : 30 SEPTEMBER 2014

FILE NO/S : CIV 2079 of 2014

MATTER : An application for a writ of Certiorari against SCOTT

JOHNSON

EX PARTE

DECMIL AUSTRALIA PTY LTD

Applicant

AND

SCOTT JOHNSON

First Respondent

INFRA TECH PTY LTD

Other Party

FILE NO/S : CIV 2223 of 2014

MATTER : An application under the Construction Contracts Act 2004 (WA)

BETWEEN : INFRA TECH PTY LTD

Plaintiff

AND

DECMIL AUSTRALIA PTY LTD

Defendant

Catchwords:

Administrative law - Prerogative writs - Whether adjudication under Construction Contracts Act 2004 (WA) involved jurisdictional error - Jurisdictional facts - Turns on own facts

Building and construction - Security of payments legislation - Time at which payment dispute arose - Whether jurisdictional error by the adjudicator

Legislation:

Construction Contracts Act 2004 (WA), s 26, s 31(2)(a)

Result:

Application for writ of certiorari dismissed

Leave granted to enforce the adjudication

Category: B

Representation:

CIV 2079 of 2014

Counsel:

Applicant : Mr D S Ellis

First Respondent : No appearance

Other Party : Ms G B A Visscher

Solicitors:

Applicant : Tottle Partners

First Respondent : No appearance

Other Party : Sonia Edwards Legal

CIV 2223 of 2014

Counsel:

Plaintiff : Ms G B A Visscher

Defendant : Mr D S Ellis

Solicitors:

Plaintiff : Sonia Edwards Legal

Defendant : Tottle Partners

Case(s) referred to in judgment(s):

Alliance Contracting Pty Ltd v James [2014] WASC 212

Blackadder Scaffolding Services (Aust) Pty Ltd v Mirvac Homes (WA) Pty Ltd [2009] WASAT 133

Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304

Kirk v Industrial Court of NSW [2010] HCA 1; (2010) 239 CLR 531

Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217; (2011) 43 WAR 319

Re David Scott Ellis Ex parte Triple M Mechanical Services Pty Ltd [No 2] [2013] WASC 161

Red Ink Homes Pty Ltd v Court [2014] WASC 52

South Coast Scaffolding and Rigging v Hire Access Pty Ltd [2012] WASAT 5

WQUBE Port of Dampier v Philip Loots of Kahlia Nominees Ltd [2014] WASC 331

BEECH J :

Introduction

1 The applicant, Decmil Australia Pty Ltd (Decmil) applies to set aside an adjudication determination in favour of Infra Tech Pty Ltd (Infra Tech), given under the Construction Contracts Act 2004 (WA) (the Act). Infra Tech applies for leave to enforce the determination.

2 Section 26 of the Act requires that an application must be served within 28 days after the payment dispute the subject of the application arises. Section 31(2)(a)(ii) provides that an adjudicator must dismiss the application without making a determination of its merits if the application has not been prepared and served in accordance with s 26.

3 In this case, the adjudicator rejected Decmil's submission that the application had not been served within 28 days after the payment dispute arose. Consequently, the adjudicator proceeded to determine the merits of the dispute, and made a determination in favour of Infra Tech.

4 Decmil asserts that in refusing to dismiss the application under s 31(2)(a)(ii), the adjudicator made jurisdictional errors. For the reasons that follow, I am not persuaded that that is so. Consequently, Decmil's application should be dismissed.

5 It follows from that that the application by Infra Tech for leave to enforce the adjudication determination should be granted.

6 The remainder of these reasons will deal with the following topics:

(1) background facts;

(2) the adjudication application;

(3) the adjudication determination

(4) Decmil's application;

(5) the statutory framework;

(6) the availability of judicial review of an adjudication;

(7) was any jurisdictional error made by the adjudicator?;

(8) conclusion.

Background facts

7 The facts are not in dispute.

8 Decmil and Infra Tech are parties to a contract dated 24 April 2014 by which Infra Tech agreed with Decmil to carry out major earthworks, including work I will refer to as 'foundation preparation' and 'deep lift work'. Rates were agreed for each of these types of work: 70 c per square metre for foundation preparation and $1.00 per square metre for deep lift work.

9 Clause 22 of the general conditions of the contract deals with progress claims and payments. By cl 22.2, Infra Tech was entitled to submit monthly progress claims. Clause 22.6 required Decmil to pay to Infra Tech the amount claimed in a progress claim within 30 days of the end of the month to which the progress claim related. Clauses 22.7 to 22.10 are in the following terms:

22.7 If Decmil disputes any amount claimed in a progress claim, Decmil shall make a determination of the amount payable and provide a progress certificate to the Subcontractor of its determination within 28 days of the progress claim being submitted (or taken to have been submitted under Clause 22.3). The progress certificate may take any form.

22.8 Decmil shall pay any amounts not in dispute in accordance with Clause 22.6.

22.9 Decmil may, prior to the time it is required to issue a progress certificate under Clause 22.7, request any additional information from the Subcontractor in respect of a progress claim.

22.10 Without limiting Clause 22.7, Decmil may issue a revised progress certificate at any time correcting any omission or error discovered in any previous progress certificate or modifying any previous payment certificate issue by it, including as a result of the provision of information under Clause 22.9.

10 By cl 22.12, payment to Infra Tech is on an account only and does not constitute approval of the work under the subcontract.

11 Clause 33 is a dispute resolution clause. Clause 33.1 provides that if a dispute arises then either party may serve the other party with a dispute notice. There is then a process stipulated for conferral, following which, if the dispute is not resolved, either party may submit the dispute to arbitration by giving written notice.

12 On 26 April 2014, Infra Tech submitted a payment claim under cl 22 of the contract. Item 5 of the claim asserted that a total of 423,605 sqm of foundation preparation had been done under the contract; the total amount claimable in respect of that item was $296,523.50 (exclusive of GST); 273,205 sqm of foundation preparation had been done in the month of April 2014; and that Infra Tech was entitled to payment of $191,243.50 (exclusive of GST); for the foundation preparation work done in April 2014.

13 The claim asserted that Infra Tech had done work to the value of $1,334,966.50 up to 30 April 2014 and that it was entitled to payment of $705,586.50 (exclusive of GST).

14 On 12 May 2014, Decmil sent an email to Infra Tech attaching what was described as a payment notice. The email included the following:

Please find attached our payment notice relating to your April progress claim. We can confirm that we believe there has been an error made in your progress claim, there is a claimed quantity for [foundation preparation] of $423,605 m2, however all of the HIEDYC works undertaken on the site to date, as recorded on the work record sheets, total 542,643 m2 which is also claimed in your progress claim under another item.

Within this assessment we have deleted the works claimed as [foundation preparation] and made an on account payment against the [deep lift work], we will require you to reconcile the works undertaken on the site to date and going forward, and split these accordingly into the correct work item ie [foundation preparation] or [deep lift work] as they are a different operation and therefore a different rate applies, 70c or $1.00 per square metre.

15 The payment notice stated that the amount payable in respect of the payment claim was $344,063 (plus GST).

16 The payment notice stated that:

(a) no foundation preparation had been done, and nothing was payable under the contract in respect of foundation preparation (item 2.1);

and

(b) the applicant had carried out 542,643 sqm of deep lift work and $542,643 was payable in respect of the deep lift work (item 2.2).

17 The note to item 2.1 of the payment notice was as follows:

Total of work record sheets received, which included compaction of the foundation and subgrade only equate to 542,643 m2, which is claimed below. Infra Tech to substantiate that claim for this item, as Decmil currently believe all works have been accounted for in the below item.

18 The item below, item 2.2, was deep lift work.

19 There was further email correspondence between the parties from 14 May 2014 to 21 May 2014. On 14 May 2014, Infra Tech set out its position in relation to the foundation preparation and deep lift work items. On 21 May 2014, Infra Tech requested that Decmil 'revalidate' the April payment claim in light of Infra Tech's response. By email letter on 21 May 2014, Decmil in effect rejected Infra Tech's position in relation to the foundation preparation and deep lift work items.

20 On 23 May 2014, Infra Tech issued a notice of dispute under the contract in respect of the payment certificate. The notice of dispute asserted that Infra Tech disputed the payment notice of 14 May 2014 issued by Decmil in relation to Infra Tech's progress claim dated 26 April 2014.

The adjudication application

21 On 17 June 2014, Infra Tech served the adjudication application.

22 In the adjudication application, Infra Tech claimed the sum of $326,175.90. That amount reflects what Infra Tech claimed in the April payment claim for foundation preparation, inclusive of GST.

23 In its adjudication application, Infra Tech contended that at the time Decmil issued the payment notice, it requested clarification of the relevant claim. On 14 May 2014, Infra Tech sent an email providing clarification in response to which, on 21 May 2014, Decmil stated that they do not agree with the explanation.

24 In their response to the application, Decmil asserted that the payment dispute arose when it issued the payment certificate on 12 May 2014, and that, consequently, the adjudicator did not have jurisdiction to determine the payment dispute because Infra Tech failed to serve the application within 28 days of the payment dispute arising. In the alternative, Decmil asserted that the application should be dismissed on its merits.

The adjudication determination

25 The adjudicator dealt with the question of whether the application must be dismissed on the ground that it was not made within 28 days in section 5 of his reasons. He recorded Decmil's assertion that the application was made more than 28 days after the dispute arose, and so must be dismissed [5.7].

26 The adjudicator stated that the effect of the decision in Blackadder Scaffolding Services (Aust) Pty Ltd v Mirvac Homes (WA) Pty Ltd is that a payment dispute is triggered either if payment of a payment claim is not made at the time it is due to be paid under the contract, or when the claim has been rejected wholly or in part [5.8] - [5.12].

27 The adjudicator set out cl 22.7, 22.9, 22.10 and 22.11 [5.15].

28 He then said as follows:

5.16 In this case the above extracts from the General Conditions of Contract supports the assignment that the parties had a method of claiming, assessing, re-assessing and later paying claims on a monthly basis and thus the implied terms of the 'Act' do not apply.

5.17 In regards to when the dispute arose the wording in the 12th May 2014 email by the Respondent, regarding progress certificate #05's assessment is important and therefore quoted in part below.

5.18 The Respondent's Contracts Administrator responded to the #05's progress claim with quote: 'we believe there has been an error made in your progress claim ' and 'we will require you to reconcile the works undertaken on the site to date and going forward and split these accordingly into the correct work item '.

5.19 Noting the GC's described earlier above I consider it to be reasonable that the Respondent was requesting reconciliation of works done to date and thus he was seeking additional information to clarify the monthly claim, including the previous claims made in January, February and March 2014.

5.20 Considering also that claim #05 was dated 26th April 2014 and that the Respondent had replied on the 12th May 2014, the progress certificate was not required to be issued until the 24th May, then some period of 12 days remained for the parties to resolve the progress claim assessment and agree to a manner going forward, or otherwise go into dispute.

5.21 The payment claim made on 26th April 2014 was not required to be paid until 'within 30 days of end of month, to which the claim relates' which is therefore the 30th May 2014. The Application for Adjudication was made on the 17th June 2014 which is also within the 28 days of full or partial payment being due and thus this section of the Act is meet by the Applicant.

5.22 Further to the above, Clause 33.1 of the General Conditions (GC's) advises how both parties may serve the other with a dispute notice. This clause outlines the conferral and arbitration steps that could have been taken. It would appear reasonable then that the parties had a method of resolving issues and a timeframe in which to elevate any matters that could not be agreed.

5.23 I therefore determine that the Applicant's position that a dispute occurred on the 23rd May 2014, by way of Notice of Dispute letter, is maintained and therefore jurisdiction holds. (underlining and italics in original).

29 The adjudicator proceeded to determine the merits of the payment dispute in favour of Infra Tech, and determined that Decmil must pay Infra Tech the sum of $302,558.17, exclusive of GST.

Decmil's application

30 Decmil applies for a writ of certiorari quashing the adjudication.

31 The grounds of the application are that the adjudicator committed a jurisdictional error in that he misapprehended the nature of limit of his functions or power, or misconstrued the Act or acted unreasonably in:

(a) finding that the relevant payment dispute arose on 23 May 2014;

(b) failing to find that the relevant payment dispute arose on 12 May 2014 when Decmil delivered a notice under cl 22.6 of the contract between Decmil and Infra Tech; and consequently

(c) failing to dismiss Infra Tech's application for adjudication on the basis that the application was made more than 28 days after the relevant payment dispute had arisen under s 6(a) of the Act.

The statutory framework: the Construction Contracts Act

32 The following outline draws on the outline in Alliance Contracting Pty Ltd v James , which in turn drew heavily on what was said by Murphy JA in Perrinepod Pty Ltd v Georgiou Building Pty Ltd .

33 Relevantly, the primary object of the Act is to provide a means for adjudicating payment disputes arising under construction contracts.

34 Section 25 permits any party to a construction contract to apply to have a payment dispute adjudicated under pt 3 of the Act, subject to material exceptions.

35 By s 3, 'payment dispute' has the meaning given to that term in s 6.

Section 6 provides as follows:

For the purposes of this Act, a payment dispute arises if -

(a) by the time when the amount claimed in a payment claim is due to be paid under the contract, the amount has not been paid in full, or the claim has been rejected or wholly or partly disputed;

(b) by the time when any money retained by a party under the contract is due to be paid under the contract, the money has not been paid;

(c) by the time when any security held by a party under the contract is due to be returned under the contract, the security has not been returned.

36 For the purpose of this application, attention can be directed to the first limb of the definition, as set out in par (a), of s 6. Under that limb, a payment dispute arises if by the time when the amount claimed in a payment claim is due to be paid under the contract the amount has not been paid in full, or the claim has been rejected or wholly or partly disputed.

37 It has been held in decisions of the State Administrative Tribunal that a payment dispute arises if, after a payment claim has been made:

(a) by the time the amount claimed in the payment claim is due to be paid, that amount has not been paid in full; or

(b) at any time prior to that, the claim has been rejected or wholly or partly disputed;

whichever is the sooner. The adjudicator proceeded on the basis of that approach. Neither party sought to challenge it. I am content to adopt that approach.

38 Section 3 defines a payment claim to mean a claim under a construction contract:

(a) by the contract of the principal for payment of an amount in relation to the performance by the contract of its obligations under the contract;

(b) by the principal to the contractor for payment of an amount in relation to the performance or non-performance by the contractor of its obligation under the contract.

39 Section 26 sets out the process for commencing an application for adjudication of a payment dispute. It provides that an application must be made within 28 days after the payment dispute arises. It sets out what the applicant must file and serve, and the required content of the application.

40 Division 3, comprising s 30 to s 37, is headed the adjudication process.

41 Section 30 provides that the object of the adjudication process is to determine the dispute fairly and as quickly, informally and as inexpensively as possible.

42 Section 31 is in the following terms:

(1) In this section -

prescribed time means -

(a) if the appointed adjudicator is served with a response under section 27(1) - 14 days after the date of the service of the response;

(b) if the appointed adjudicator is not served with a response under section 27(1) - 14 days after the last date on which a response is required to be served under section 27(1).

(2) An appointed adjudicator must, within the prescribed time or any extension of it made under section 32(3)(a) —

(a) dismiss the application without making a determination of its merits if —

(i) the contract concerned is not a construction contract;

(ii) the application has not been prepared and served in accordance with section 26;

(iii) an arbitrator or other person or a court or other body dealing with a matter arising under a construction contract makes an order, judgment or other finding about the dispute that is the subject of the application; or

(iv) satisfied that it is not possible to fairly make a determination because of the complexity of the matter or the prescribed time or any extension of it is not sufficient for any other reason;

(b) otherwise, determine on the balance of probabilities whether any party to the payment dispute is liable to make a payment, or to return any security and, if so, determine -

(i) the amount to be paid or returned and any interest payable on it under section 33; and

(ii) the date on or before which the amount is to be paid, or the security is to be returned, as the case requires.

(3) If an application is not dismissed or determined under subsection (2) within the prescribed time, or any extension of it made under section 32(3)(a), the application is to be taken to have been dismissed when the time has elapsed.

43 Section 32 deals with matters of procedure and adjudication. Section 36 sets out the contents of an adjudicator's determination.

44 Section 46 provides a limited right of review in relation to a decision made under s 31(2)(a).

The availability of judicial review of an adjudication

45 A determination made pursuant to s 31(2)(a) of the Act can be challenged by proceedings for judicial review.

46 Section 46 does not preclude judicial review for jurisdictional error.

47 Insofar as the distinction between an inferior court and other administrative body has utility, an adjudicator under the Act is more akin to an inferior court.

48 The non-existence of the criteria in s 31(2)(a)(i) - (iv) are jurisdictional facts which must be established in order to enliven the adjudicator's power to make a determination on the merits under s 31(2)(b).

49 In Perrinepod v Georgiou , Murphy JA considered the distinction between what is often termed jurisdictional facts in the broad and narrow senses. The narrow sense is where the exercise of power is contingent on the actual existence of a state of facts. In the case of a jurisdictional fact in the broad sense, the court's inquiry is directed to the process of reasoning adopted by the adjudicator, not to whether the jurisdictional fact actually existed.

50 In Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd , Pritchard J considered the proper characterisation of the jurisdictional fact in s 31(2)(a)(ii). Her Honour concluded that the criteria in s 31(2)(a)(ii) should not be characterised as a jurisdictional fact in the narrow sense. Thus, the question is not whether that criterion in fact existed. Rather the focus is on the conclusion drawn by the adjudicator, and on the process by which the adjudicator came to that conclusion.

51 Her Honour's analysis has been followed in subsequent cases. I too propose to follow that approach, which was the position adopted by both parties in this application.

52 Thus, a decision of an adjudicator in respect of one of the jurisdictional facts identified in s 31(2)(a) will be set aside if the decision:

(a) was so unreasonable that no reasonable decision maker would have reached that conclusion;

(b) was reached by misconstruing the Act;

(d) manifested serious irrationality or illogicality; or

(e) involved a misconception of the nature of the function which the adjudicator was performing.

53 In the course of judicial review of an adjudication, it is necessary to keep in mind the informal and speedy nature of the adjudication process. It is inappropriate to engage in a line by line analysis of the adjudicator's determination. An adjudicator is not expected or required to express himself or herself with the same degree of legal precision as would a court.

54 I adopt the observations of Pritchard J in Cape Range about the contextual considerations in the Act that indicate the role of an adjudicator, and that should be borne in mind assessing a contention that an adjudicator's reasons reveal jurisdictional error.

Was any jurisdictional error made by the adjudicator?

55 Decmil asserts that the adjudicator made jurisdictional errors in:

(a) not finding that the payment dispute arose on 12 May 2014 when Decmil issued the progress certificate to Infra Tech;

(b) finding that the payment dispute arose on 23 May 2014 when Infra Tech issued the notice of dispute under cl 33 of the Contract.

56 Decmil's written submissions started with the second of these propositions. In oral submissions, Decmil appeared to submit that even if the first of these errors is not made out, Decmil should succeed if it establishes the second of these errors.

57 I do not think it is useful to focus on the second of these propositions in isolation from the first.

58 Section 31(2)(a)(ii) and s 26 of the Act required the adjudicator to dismiss the application if, relevantly, the application had not been served within 28 days after the payment dispute arose. The adjudicator understood that that was Decmil's submission to him. The application was served on 17 June 2014, so the requirement of s 26 would not have been met if the payment dispute had arisen on or before 20 May 2014.

59 The only basis on which Decmil asserted to the adjudicator that the application was served outside the 28 day period required by s 26 was its contention that the payment dispute arose when the progress certificate was issued on 12 May 2014. In my view, the focal point is to ask whether the adjudicator made any jurisdictional error in rejecting that contention.

60 As I will explain, there are other dates after 20 May 2014, apart from 23 May 2014, on which the payment dispute may have arisen. Thus, if error is shown in the finding that a payment dispute arose on 23 May 2014, it does not follow that the adjudication was served more than 28 days after the payment dispute arose.

61 Of course, the adjudicator's reasons must be read as a whole. The adjudicator's reasoning in relation to any finding as to any later time at which the payment dispute arose must be examined in assessing whether the adjudicator's reasons reveal jurisdictional error in finding that the application was not served more than 28 days after the payment dispute arose.

62 For the reasons that follow, I am not persuaded that the adjudicator made any jurisdictional error in declining to dismiss the application on the ground that it was served more than 28 days after the payment dispute arose. In particular, I am not satisfied that the adjudicator:

(a) misconstrued the Act;

(b) misunderstood the nature of the function he was performing;

(d) reached a conclusion that was so unreasonable that no reasonable decision maker could have reached it.

63 In short, I am of this opinion because I do not accept that the adjudicator's reasons are to be read in the manner invited by Decmil.

64 In reading the reasons of the adjudicator, the principles set out earlier in these reasons must be applied, and not merely given lip service.

65 In my view, the essential reasoning of the adjudicator was that, taking into account the relevant general conditions, and taking into account the language of the communications between the parties, including the email accompanying the progress certificate, the progress certificate did not constitute a rejection or disputation of the April payment claim. Rather, it was a request for further information so that the parties could attempt to reach an agreed position, failing which there would be a dispute about the payment claim. Reading the reasons as a whole, in my view, the adjudicator concluded that the communications on 12 May 2014 amounted to a request for further information accompanied by a provisional indication that in the absence of further information, the payment claim would be rejected.

66 In coming to that conclusion, the adjudicator:

(a) considered the relevant contractual provisions in general condition 22;

(b) made findings of fact about the communications between the parties, including the terms of the accompanying emails; and

67 That reflects a proper understanding of his task.

68 In assessing whether the progress certificate rejected or disputed the payment claim, the adjudicator took into account its timing, relative to the payment claim, in the context of the contractual scheme. That does not reveal any error.

69 Decmil submits that the adjudicator's reasons reveal that the adjudicator considered that it was not sufficient, in order to give rise to a payment dispute, that the recipient reject the payment claim; the claimant needed also to express dissatisfaction with that rejection before a payment claim arose. Such a view would, I accept, reveal an error in the construction of the Act. However, I am not satisfied that the adjudicator's reasons reveal this error.

70 In support of this contention, Decmil points to the reference in [5.20] of the adjudicator's reasons to the parties 'go[ing] into dispute', and to the adjudicator's finding that the payment dispute arose on 23 May 2014 by the notice of dispute. Decmil also points to those two passages of the adjudicator's reasons as indicating a related error on the part of the adjudicator in conflating the procedure in cl 33 of the Contract with the operation of s 6(a) of the Act.

71 In my view, reading the adjudicator's reasons as a whole, and taking into account the principles referred to in [53] - [54] of these reasons, the adjudicator's reference in [5.20] to the parties 'go[ing] into dispute' is not to be read as a reference to the invocation by the parties of the procedures in cl 33 of the Contract. Rather, the adjudicator was saying that if, after the requested further information was provided, the parties disagreed as to the merits of the progress claim, the claim would thus be disputed, giving rise to a payment dispute.

72 Decmil submits that the reference by the adjudicator in [5.23] to the notice of dispute demonstrates that the adjudicator considered that a payment dispute arose only if the claimant expressed dissatisfaction with the rejection of the claim by the recipient. I do not accept that contention. In my view, such a reading of the adjudicator's reasons is inconsistent with the adjudicator's careful focus on the precise terms of the email that accompanied the progress certificate. The adjudicator said that the wording of the email was important and for that reason he quoted its terms. The wording of the email accompanying the progress certificate would have been irrelevant if the adjudicator held the view that the claimant needed to be dissatisfied with the recipient's rejection of the payment claim before the payment dispute arose. Moreover, a little earlier in his reasons, the adjudicator had referred to the decision of the State Administrative Tribunal in Blackadder Scaffolding Services (Aust) Pty Ltd v Mirvac Homes (WA) Pty Ltd . The adjudicator correctly summarised the Tribunal's conclusion about s 6(a), materially, that a payment dispute is triggered either if payment of a claim is not made when it falls due under the contract or, if, at any earlier time, the claim has been rejected wholly or in part. Bearing in mind the considerations referred to in [53] - [54] of these reasons, in judicial review proceedings in respect of an adjudication the court should be slow to read the passages following very shortly after this as revealing a basic misunderstanding of s 6(a), when a different reading is available.

73 In my opinion, the essence of the adjudicator's reasoning on the question of jurisdiction is his conclusion that the issuing of the progress claim on 12 May 2014 was not the rejecting or disputing of the April payment claim. That conclusion sustained the rejection of Decmil's contention that the adjudicator had no jurisdiction.

74 In the balance of section 5 of his reasons, dealing with the jurisdiction point, the adjudicator made two alternative findings as to when the payment dispute arose. In [5.21], the adjudicator identified the date by which payment was due, and not paid, as 30 May 2014, pointing out that the application for adjudication had been made less than 28 days after that date. In [5.23], the adjudicator accepted Infra Tech's position that the payment dispute occurred on 23 May 2014 by way of the notice of dispute letter.

75 On the face of it, a conclusion that the notice of dispute gave rise to a payment dispute seems a surprising one. The notice of dispute was given by Infra Tech, the claimant in respect of the payment claim. Only the recipient of a payment claim can fail to pay it, or dispute or reject it. However, Decmil's response to Infra Tech's payment claim had, the adjudicator found, been a request for reconciliation of the works done and for further information. That had led to correspondence between the parties, but Infra Tech did not provide any reconciliation. The notice of dispute made it plain that Infra Tech would not do so. In those circumstances, it was open to the adjudicator to come to the conclusion that that meant that Decmil's conditional rejection of the payment claim had become an unequivocal rejection, so that a payment dispute had arisen.

76 In any event, I am satisfied that the adjudicator's finding that the notice of dispute gave rise to the payment dispute is not material to his rejection of Decmil's contention that that application had been filed more than 28 days after the payment dispute arose. For reasons already explained, in my view what the adjudicator said about the significance of the notice of dispute does not reveal any error in the adjudicator's conclusions about whether the progress certificate constituted the rejection or disputing of the payment claim. In determining that latter question, the adjudicator correctly focused on the relevant contractual provisions and terms of the communications between the parties, and did not misconstrue s 6(a) of the Act. It may be that the adjudicator's reasoning would have been properly expressed by a conclusion that a payment dispute arose on 21 May 2014, by virtue of Decmil's letter of that date, rather than 23 May 2014. In any event, given the adjudicator's finding that the progress certificate was not a rejection or disputing of the claim, if a payment dispute had not arisen by 30 May 2014, it arose on that day when the claim was not paid. That was the finding of the adjudicator [5.21].

77 Decmil points to the terms of cl 22.7 of the Contract. That clause provides that if Decmil disputes any amount claimed in a progress claim, Decmil makes a determination of the amount payable and provides a progress certificate of its determination. Decmil emphasises that no occasion arises for the provision of a progress certificate unless Decmil disputes an amount claimed in the progress claim.

78 The adjudicator quoted cl 22.7 [5.15]. In my view, there is nothing to suggest he overlooked or misunderstood its effect. I accept that cl 22.7 provides that the occasion for a progress certificate arises only if Decmil disputes the amount claimed in a progress claim. That was a matter to be taken into consideration in assessing whether the April payment claim had been disputed. However, it was not, in itself, determinative. It is open to parties to a contract to communicate in ways that modify the intended operation of the provisions of the contract. In assessing the events against the statutory criteria in s 6(a), the provisions of the contract and the terms of the communications between the parties must all be considered. That is what the adjudicator did.

79 In my opinion, the conclusion reached by the adjudicator was one that was open to him. It was not a decision so unreasonable that no reasonable decision maker could have reached it. Nor does it exhibit irrationality and illogicality. Decmil's written submissions point to features of the progress certificate which state that the quantity and amount assessed for item 2.1 was $0. Notwithstanding the presence of those entries, in my view, given the terms of the comment about item 2.1 and the terms of the accompanying email of 12 May 2014, it was open to the adjudicator to come to the view that by the progress certificate, the payment claim had not been rejected or disputed. The comment column for item 2.1 referred to what Decmil 'currently believed' and required Infra Tech to substantiate the claim. While there may be room for differing views as to the significance of that, one view reasonably open is that it supports a conclusion that the progress certificate did not objectively amount to a rejection or disputing of the claim; rather, it stated Decmil's current, provisional position, coupled with and subject to a request for further information. The same is true, in my view, of the language in the email of 12 May 2014.

80 Decmil also points to the terms of Infra Tech's email of 21 May 2014 in which Infra Tech requested Decmil to 'revalidate' the April progress claim and to 'reassess' it. In my view, the significance, if any, of the language in the email of 21 May 2014 requesting Decmil to 'reassess' the April payment claim was a question of fact for the adjudicator. It did not compel a conclusion that the progress certificate amounted to disputing or rejecting the April payment claim. The same is true of the language in the Notice of Dispute.

Conclusion

81 For these reasons I am not persuaded that the adjudicator's reasons reveal any jurisdictional error in his rejection of Decmil's contention that the adjudication must be dismissed because it was served more than 28 days after the payment dispute arose. Consequently, I would dismiss Decmil's application.

82 Decmil did not advance any reason why, if its application was dismissed, leave to enforce the determination should not be granted. I would grant Infra Tech that leave.

83 Costs should follow the event.