Singh v A1 Home Builders Pty Ltd [2025] NSWSC 1521
What happens if a claimant has misspelled the respondent’s email address in the adjudication application form? The result is that the respondent will not have received any notice of the adjudicator’s appointment, giving rise to a jurisdictional issue that can render the determination void. This is what happened in Singh v A1 Home Builders Pty Ltd [2025] NSWSC 1521.
Background
The Plaintiff owners engaged the defendant builder to construct a dwelling on their property. The builder issued a final invoice as a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act). The owners did not provide a payment schedule, not even after the builder had issued a notice under section 17(2) of the Act of its intention to apply for an adjudication.
The builder then applied for adjudication to Adjudicate Today (an adjudicator nominating authority). However, the builder misspelled the owners’ email address in the adjudication application form. The adjudicator presumably sent the notice of acceptance of appointment as the adjudicator to the misspelled email address. As a result, the owners did not receive the adjudicator’s notice.
The adjudicator subsequently made a determination in favour of the builder, and the owners challenged the decision in court.
Court’s decision
An adjudication determination can only be challenged on jurisdictional grounds. In this case, the Court had no difficulty in finding that the adjudicator’s failure to serve the notice of acceptance on the owners gave rise to a jurisdictional error and absence of procedural fairness. As the notice of acceptance was not served on the owners, the owners would not know the identity of the adjudicator and would lose the right to challenge the appointment.
Also, under the Act the time for providing an adjudication response depends on the time of receipt of the notice of acceptance.
Further, the importance of the notice of acceptance is also highlighted in section 19 of the Act:
(1) If an authorised nominating authority refers an adjudication application to an adjudicator, the adjudicator may accept the adjudication application by causing notice of the acceptance to be served on the claimant and the respondent.
(2) On accepting an adjudication application, the adjudicator is taken to have been appointed to determine the application.
[Emphasis added]
By failing to serve the notice of acceptance on the owners, the adjudicator had not been duly appointed in accordance with section 19(1). Accordingly, the adjudicator had no jurisdiction to determine the application, and the determination was therefore void.
Takeaways and observations
For claimants, the adjudication application form is an important document, so every effort should be made to ensure it is correct. A small error can have grave consequences.
Also, make sure the adjudicator’s notice of acceptance is properly served on the respondent. The duty to serve the notice is on the adjudicator, but the claimant will bear the consequences of the adjudicator not serving the notice properly.
If you would like to discuss this article with us, please contact Simon Mok, Partner on (02) 9261 5900.