Challenging an Adjudication Determination: The Narrow Path After Probuild

The first thing to tell any respondent smarting from an adjudication determination is the statistical truth: most challenges fail, and they fail expensively — usually with the adjudicated amount paid into court as the price of admission. The security of payment regime trades accuracy for speed by design, and the High Court sealed the trade in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4: determinations cannot be quashed for non-jurisdictional error of law, however plainly wrong. The adjudicator misreading your contract, miscalculating your set-off, preferring the worse delay analysis — none of it is reviewable. What survives is jurisdictional error, and the craft lies in knowing what genuinely falls inside it.

The grounds that actually work

Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 established the modern framework: judicial review for jurisdictional error is constitutionally protected, and compliance with the Act's preconditions is jurisdictional. From the case law in this series, the live grounds sort into four families:

1. No valid foundation. The statutory machine never validly started: no construction contract within the Act, no entitlement anchor for the claim (a reference date under old-regime and Queensland contracts — Southern Han), a claim outside the timing rules, or an excluded arrangement. These attack the payment claim itself, which is why the validity audits we've covered matter on both sides.

2. Missed statutory preconditions. The pathway steps are jurisdictional: the s 17(2) notice on the no-schedule route (Chase Oyster Bar itself), application windows, service requirements. A day late is not a discretion; it is a void determination.

3. Denied procedural fairness — in the narrow, real sense. Not "the adjudicator preferred their submissions", but the adjudicator deciding on a basis neither party advanced, without inviting submissions — A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2024] NSWCA 7, where the breach must also be material (a realistic possibility of a different outcome). These cases are rare by design, and severance (s 32A in NSW) means success may only excise the infected part while the balance stands and is enforceable.

4. The adjudicator answering the wrong question — failing to perform the statutory task at all, as distinct from performing it badly. The hardest family to make out, and the one most often pleaded as a disguise for merits complaints.

Two boundary markers complete the map. A claimant who receives an adverse jurisdictional ruling cannot shop for a second adjudicator — the ruling is a determination, and re-application is an abuse of process (Kwik Flo Pty Ltd v SE Ware Street Dev Pty Ltd [2026] NSWCA 9); judicial review is the only road. And the state you are in matters: Queensland's Supreme Court treats some matters NSW leaves to the adjudicator — notably the existence of a valid payment schedule — as jurisdictional facts the court decides for itself (CPB Contractors Pty Ltd v MSS Projects (NSW) Pty Ltd [2025] QSC 239), giving Brisbane respondents a wider review door than Sydney ones. Western Australia adds a different creature entirely: a statutory review adjudication tier for large discrepancies, on a five-business-day clock.

The decision framework

Whether to challenge is a commercial decision dressed as a legal one. Run it in this order:

• Characterise honestly. Map the complaint against the four families above. If the truthful description is "the adjudicator got it wrong", stop: Probuild closes that door, and the money is better spent on the final-rights proceedings where merits actually count.
• Price the admission. In NSW, resisting enforcement requires paying the unpaid adjudicated amount into court (s 25(4)); add costs exposure (recall the indemnity costs in failed security-injunction cases — courts are no gentler here). The challenge must be worth its carrying cost.
• Check the severance arithmetic. If the arguable error infects one component (A-Civil's retention line), a successful challenge may strip that component only. Calculate what victory is actually worth before buying it.
• Mind the insolvency angle separately. If the real concern is the claimant's capacity to repay after final rights are determined, the route may not be review at all but a stay of enforcement on Taringa v Kenik [2024] QSC 327 principles — a different application with different evidence (concrete solvency documents, money into court, the substantive proceeding on foot).
• Preserve the record as you go. Challenges are won on the adjudication file: the submissions actually made, the reasons actually given, the dates actually met. The two-column exercise — what was argued versus what was decided — is the first hour of any honest assessment.

What this means in practice

1. Respondents: the challenge begins before the determination. Jurisdictional objections (validity, pathway, timing) belong in the payment schedule and the adjudication response, on the record. Points run for the first time at review invite discretionary refusal — and the schedule lock-in means your substantive reasons were fixed long ago anyway.
2. Claimants: build determinations that are challenge-proof. Serve cleanly, anchor the entitlement, address jurisdiction squarely in the application, and structure heads of claim severably so a single infected finding cannot threaten the whole award.
3. Both: calendar the post-determination clocks immediately — payment, certificate, filing, any WA review window. Review strategy without diary discipline is theatre.
4. Treat the final-rights proceedings as the main game. Adjudication is interim by design. The disciplined parties bank or pay the determination, preserve every right in correspondence, and direct the real fight to the forum where the merits are at large.

Key takeaways

• No review for non-jurisdictional error of law (Probuild); jurisdictional error survives (Chase Oyster Bar) in four real families: invalid foundation, missed preconditions, material procedural unfairness, failure to perform the statutory task.
• Procedural fairness challenges are rare and severable (A-Civil v Ceerose); re-applying to a second adjudicator is abuse of process (Kwik Flo).
• Queensland reviews jurisdictional facts the court decides itself (CPB v MSS Projects); WA has a statutory review tier; NSW requires payment into court to resist enforcement.
• Characterise honestly, price the admission, check severance, and consider a Taringa-style stay where the true risk is repayment — then put the main effort into final rights.

This article is general information only and is not legal advice. For advice on a specific contract or dispute, seek legal counsel or contact Sumit Consulting for commercial and claims advisory support.