In Cherrie Civil Engineering Pty Ltd v Jonishan Pty Ltd [2026] NSWSC 178, Rees J dismissed Cherrie's application to quash an adjudication determination issued in favour of Jonishan, finding that this was not one of the "rare cases" where an adjudicator fell into jurisdictional error by failing to consider a party's submissions.
In November 2023, Cherrie engaged Jonishan to undertake stormwater works on a residential development in Pennant Hills for $2.13m. By April 2024 the parties were discussing a reduced scope of works and the value of the descoping. In May 2024 Cherrie issued a variation for a scope deduction valued at $1.15m. Jonishan rejected this and the subsequently issued variation was valued at $974k. A site meeting took place following which Jonishan demobilised from site. In June 2024 Cherrie provided a second variation for a scope deduction valued at $382k. Jonishan rejected the valuation of both variations and the issues remained unresolved. 9 months later Jonishan issued a payment claim for $554k. Cherrie provided a payment schedule based on its valuations of the descoping variations. Jonishan submitted an adjudication application and Cherrie issued a response accompanied by a ZIP file. The adjudicator awarded Jonishan $218k after taking account of the descoping.
Cherrie commenced proceedings seeking to quash the determination on the basis of jurisdictional error. Cherrie submitted that the adjudicator did not consider its submissions or Quality Documentation included in the ZIP files, and incorrectly said that it had not provided any supporting materials. Cherrie said this error was decisive and not severable from the award. It said the error was jurisdictional as the adjudicator was required to consider the response and all submissions including documentation duly made.
Her Honour disagreed. Failure to take a matter into account must be material to constitute appealable jurisdictional error. The failure to identify a particular claim or response will not itself demonstrate a failure to consider. There are a number of reasons this could occur - as discussed and demonstrated in the recent NSWCA cases of Ceerose. Applying the principles to the case. Where the adjudicator was required to consider some 1,700 pages of material in total, and 600 pages of "Quality Documentation", the adjudicator was not required to carefully read each page, without meaningful assistance from the party seeking to rely on the material. Not could it be said that the adjudication determination could have been different, as a matter of reasonable conjecture, if the adjudicator had carefully examined each page - it is unclear how the documents supported Cherrie's valuation contended for.