In Cherrie Civil Engineering Pty Ltd v Jonishan Pty Ltd [2026] NSWSC 178, the Supreme Court of New South Wales dismissed an application to set aside an adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW).

The decision is a timely reminder that, in adjudication, simply uploading a large volume of supporting material is not enough. A party must clearly explain how the material supports its position, particularly where the adjudicator is being asked to accept a valuation or methodology.

Background

Cherrie Civil Engineering Pty Ltd (‘Cherrie’) engaged Jonishan Pty Ltd (‘Jonishan’) to carry out stormwater works for a residential development in Pennant Hills.

During the project, the parties disputed the value of a substantial reduction in Jonishan’s scope of works. Cherrie issued a number of variation assessments relating to the descoped works, including Variation No 20, which valued the second scope deduction at $381,799.04.

Jonishan later served a payment claim. In the adjudication, Jonishan disputed Cherrie’s valuation of the descoped works and submitted that Cherrie had not provided supporting documents to justify the quantities deducted for pipes and precast pits.

Cherrie lodged an adjudication response. As part of that response, it uploaded a ZIP file containing various folders, including a folder called “Quality Documentation”. That folder contained approximately 600 pages of material, including inspection reports and other documents. However, the adjudication response did not clearly identify that folder or explain how those documents substantiated Cherrie’s valuation of Variation No 20.

The adjudicator rejected Cherrie’s position on Variation No 20. In doing so, the adjudicator stated that Cherrie had not provided drawings, photographs or the scope given to the new subcontractor in support of its deductions.

Cherrie then commenced Supreme Court proceedings, arguing that the adjudicator had failed to consider the 600 pages of material in the “Quality Documentation” folder, and that this amounted to jurisdictional error.

The Court’s decision

Rees J dismissed the summons with costs.

Her Honour accepted that an adjudicator must consider the matters required by s 22(2) of the NSW SOP Act, including submissions and relevant documentation duly made by the parties. However, a failure to consider material will only amount to jurisdictional error if the failure is material, that is, if the decision could realistically have been different.

The Court applied the principles in Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225, where the Court of Appeal confirmed that it will usually be difficult to establish that an adjudicator failed to consider material. This is especially so in SOP adjudications, where adjudicators are often required to deal with hundreds or thousands of pages within tight statutory timeframes.

Rees J found that this was not one of the rare cases where a failure to refer to a clearly articulated and centrally important submission demonstrated a failure to consider it.

A key problem for Cherrie was that its adjudication response did not clearly explain the significance of the “Quality Documentation” folder. The response contained only a cursory reference to “QA documentation”, and that term was not defined. The Court observed that it was not obvious that the reference was intended to refer to the ZIP folder called “Quality Documentation”.

Further, the relevance of the documents themselves was unclear. The material included inspection reports and other documents of varying completeness and legibility. It may have shown, at most, some of the work that Jonishan had completed. However, it did not clearly establish the value of the work that had not been completed, which was the critical issue for Variation No 20.

Rees J held that the adjudicator was not required to carefully read each page of approximately 600 pages of material, without meaningful assistance from the party seeking to rely on it. Nor was the adjudicator required to search through the documents to construct an argument that had not been clearly articulated.

The Court also found that materiality was not established. Even if the adjudicator had reviewed every page of the “Quality Documentation” folder, it was unclear how the documents would have supported Cherrie’s valuation of Variation No 20 or led to a different determination.

Takeaways

This decision reinforces several important points for parties involved in SOP adjudications:

1. Volume is not a substitute for clarity. Uploading hundreds of pages of documents will not assist if the adjudicator is not told exactly what the documents prove.
2. Submissions must connect the evidence to the argument. If a valuation depends on quantities, rates, drawings or inspection records, the adjudication response should explain the calculation step by step and identify the precise documents relied on.
3. Do not expect the adjudicator to build the case for you. The adjudicator’s task is to determine the dispute based on the parties’ submissions, not to search through large bundles to find support for a party’s position.
4. Materiality remains critical in judicial review. Even if an adjudicator overlooks material, a party seeking to set aside the determination must still show that the outcome could realistically have been different.

In summary, in adjudication proceedings, a well-structured submission supported by targeted evidence is far more persuasive than a large, unstructured document dump.