Statutory payment provisions, adjudication process and enforcement proceedings in the construction industry of the United Kingdom and New South Wales: a comparative legal analysis from the perspective of mitigating the injustice caused by adjudication’s pseudo-temporary nature

This thesis involves a comparative study between Part II of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA) of the United Kingdom (UK) and the Building and Construction Industry Security of Payment Act 1999 (BCISPA(NSW)) of the Australian state of New South Wales (NSW). It argues that HGCRA and BCISPA(NSW), and in fact every legislation introducing statutory payment provisions and adjudication in a jurisdiction, suffer from a common problem. That is, in tackling the injustice caused by the advantages that one party can get from delaying dispute resolution, the legislation creates a different kind of injustice caused by adjudication’s ‘pseudo-temporary’ nature. This thesis aims to recommend how to better resolve this problem.

This thesis uses the term ‘pseudo-temporary’ to describe the phenomenon whereby an adjudicator’s decision is in practice final, albeit in principle temporary. Injustice arises when the cause of this phenomenon is the insolvency, or the risk of intervening insolvency, of (usually) the winning party in an adjudication before the conclusion of subsequent arbitration or litigation (other than adjudication enforcement proceedings) and actual repayment of any sums ordered, thereby deterring the other party from pursuing such proceedings.

Chapter One reviews the legislation’s purpose. Chapter Two expounds on this phenomenon of adjudication’s pseudo-temporary nature and examines possible countermeasures. It argues that this problem is better resolved through statutory intervention, amending the legislation to the version that promotes the highest degree of procedural justice whilst preserving its speed.This thesis then comparatively analyses the components forming HGCRA’s and BCISPA(NSW)’s three fundamental pillars, namely, statutory payment provisions including remedies available for non-payment or under-certification (Chapters Three to Five), adjudication process (Chapters Six and Seven) and enforcement proceedings of an adjudicator’s decision (Chapter Eight), recommending the version that promotes the highest degree of procedural justice whilst preserving the legislation’s speed.