The Supreme Court of Western Australia recently handed down the decision of Clough Projects Australia Pty Ltd v Floreani  WASC 101 in a dispute between Clough Projects Australia Pty Ltd (Clough) and Oceanic Offshore Pty Ltd (Oceanic) arising out of works to upgrade the Mundaring Weir.
Clough applied to the Supreme Court of Western Australia for a writ of certiorari to quash a determination made by the adjudicator under the Construction Contracts Act 2004 (CCA) that Clough was to pay Oceanic the amount of AU$465,658 for payment claims under the subcontract.
The Supreme Court granted Clough’s application and quashed the adjudicator’s determination, on the basis that the adjudicator failed to afford Clough procedural fairness and made a jurisdictional error by exceeding his jurisdiction by adjudicating payment disputes that had not arisen under the subcontract.
The Supreme Court held as follows:
- Section 32(3)(c) of the CCA gave the adjudicator the power to adjudicate more than one payment dispute between the parties simultaneously without Clough’s consent
- The adjudicator determined the payment disputes on a basis not argued by the parties, and denied Clough procedural fairness by not inviting submissions
- The adjudicator exceeded his jurisdiction by determining the payment disputes on findings that one or more implied contracts had been formed between the parties