Adjudication Void: Failure to Bona Fide Exercise Powers and Denial of Natural Justice

Key Points

• The recent decision in Lanskey is rare in that an adjudicator's determination was void on the grounds that the respondent in that case was denied natural justice and the adjudicator did not bona fide exercise his powers.
• The decision however contains little analysis of the meaning of "bona fide exercise of powers".

Following the decision in Brodyn v Davenport [2004] NSWCA 394, dissatisfied respondents under the Building and Construction Industry Security of Payment Act 1999 (NSW) have had limited grounds upon which to challenge adjudication determinations. In Brodyn it was held that in NSW the only circumstances where a determination is void is if:

• an essential pre-condition to the determination or a basic and essential requirement of the Act was not satisfied;