Kennett Pty Ltd v Janssen & Anor

Citation: SCSA 30 July 2013 (unreported)

Nature of case:
A subcontractor (“Janssen”) obtained an adjudication determination against the plaintiff builder (“Kennett”). Kennett sought a declaration that the determination was void on the ground that the 4th Defendant adjudicator (“Ashman”) was not eligible to be an adjudicator. The declaration was sought by way of summary judgment.

Regulation 6 of the Building and Construction Industry Security of Payment Regulations 2011(SA) sets out a number of alternative qualification bases, including that the person is or is eligible to be a member of any of a number of listed bodies, including the Institute of Arbitrators and Mediations Australia. Ashman asserted that, whilst he was not a member of IAMA, he was – as an experienced mediator – eligible for such membership.

Justice Blue rejected that assertion. The Constitution of AIMA makes membership conditional on its Council deeming a person sufficiently qualified. That is a subjective test, which Ashman had not satisfied. The adjudication determination was accordingly declared void.

Counsel: Robert Fenwick Elliott acted on behalf the successful plaintiff, Kennett Pty Ltd.

Counsel