Girt v Bentley
Technology and Construction Court
His Honour Judge David Wilcox
12 April 2002
The issue for determination was whether the adjudicator’s decision in favour of the builder could successfully be challenged on the ground that the adjudicator in dealing with the taxation status of the builder determined matters outside his jurisdiction with the result that his award should not be enforced by the court.
Judge Wilcox held that the adjudicator’s decision could not successfully be challenged on this ground. It was unfortunate that a reduction was made by the adjudicator in relation to tax since the appropriate certificate which would have enabled a gross payment to be made to the builder was in fact produced and filed with the Inland Revenue. If anyone had cause to complain that the adjudicator went off on a “frolic of his own”, albeit with the best of intentions, it was the builder insofar as he had no opportunity of addressing the adjudicator on the point. The adjudicator was, however, properly seized of a dispute as to how much was contractually due to the builder and any prejudice resulting from an arguable breach of natural justice on the adjudicator’s part was in fact visited on the builder (rather than the employer).
This case once again emphasises the broad ramifications of the decision of Dyson J in the seminal case of Macob Civil Engineering v Morrison Construction (1999). Dyson J held that it was irrelevant to the enforceability of a decision that the adjudicator made an error of fact or law unless he purported to make a decision which he was not empowered to make under the Act. The adjudicator in the instant case was empowered to decide how much was contractually due to the builder. Even though the adjudicator went off on a “frolic of his own” in considering and making his decision based on what he found to be the builder’s tax status, this finding should be regarded as bearing on the how much was due and should therefore not be struck down by the court.