Kreisson Legal is a provider of premium commercial legal services in selected areas of law for the Construction, Retail, Manufacturing and Corporate markets.
The company recently presented the summary of decision of Chase Oyster Bar v Hamo Industries  NSWCA 190, a case highlighting the importance of a new decision that may challenge the Determinations of Adjudicators because of jurisdictional errors.
The Brodyn approach limited challenges to determinations that lacked any of the "basic and essential requirements" for a valid determination. This contradicts the Court of Appeal’s decision who said that this approach has now been undermined by the “new dimension of the distinction between jurisdictional and nor jurisdictional error” that was reinforced by the High Court in Kirk.
This puts the spotlight back on adjudicators who will be forced to ensure that they discharge their obligations with extra vigilance to avoid the risk of their determinations being set aside for jurisdictional error.
The decision will also no doubt increase activity in the Supreme Court as creative respondents consider new opportunities to identify jurisdictional errors.
What this means for claimants is more care in complying with the strict requirements in the making of payment claims and the issue of notices under s17(2) of the Act as a failure to strictly comply with the requirements of the Act, could expose the potential for:
• jurisdictional error by the Adjudicator at some future time,
• a heavy costs order against Claimants if their Claims, Adjudication Application, supporting evidence and documents are not of the high standard necessary to discharge their evidentiary
and procedural onus under the Act.