Set-off won’t stop enforcement

Although the NT security of payment Act is largely modelled on WA’s Construction Contracts Act and operates identically in many respects, there are a number of notable differences.  One of them is that under the NT Act there is a straight forward right to enforce an adjudication determination as a judgment debt, whereas under the WA Act it can only be enforced if the court first gives permission to do so.

However, this particular difference may be more apparent than real.  In a brief judgment delivered on Thursday, Master Sanderson of the Supreme Court of WA in NRW Pty Ltd v Samsung C&T Corporation [2015] WASC 372 said he could not see any circumstances where registration of an adjudication determination would be refused, except perhaps where a judicial review has been undertaken or a party has exercised its limited rights of appeal under section 46.  The Master’s reference to a section 46 appeal is peculiar because that is only an appeal against a dismissal of an adjudication application, so in that case there would be no adjudication determination being enforced.

Procedurally then, if an adjudication determination is being challenged by way of judicial review, the WA Act allows the challenger to seek that the enforcement of the determination be disallowed at the time it is sought to be enforced, whereas in the NT the challenger would need to include injunctive orders to that effect in its application for judicial review.  In NRW, the respondent in the adjudication unsuccessfully sought that the enforcement of the determination be disallowed on the basis that it had a substantial set-off against the determination in its favour, for which it provided extensive evidence.  The Master refused to even examine the evidence as he held that a set-off was no ground for refusing to register the judgment.

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