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Richard Hildrick’s case notes: Aspect Contracts

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  1. Richard’s analysis of the decision of the Court of Appeal has missed an important ramification of the decision.
    The Court of Appeal, in allowing the appeal, unwittingly created an anomalous position.
    It decided and created a new cause of action that the “decision” of the adjudicator could be reviewed and challenged in court, not the “dispute” as is contained in the wording of the Scheme at para 23 (2)

    The Court of Appeal severed the dispute by missunderstanding the “counter claim” which was not such as understood by construction professionals.The section styled “counter claim” was in fact that part of the “dispute” that was rejected by the adjudicator in arriving at the “decision”.
    In this regard the Court of Appeal have redefined the intention of Parliament and the “dispute” is not able to be finally determined if the losing party to an adjudication waits until the “dispute” is out of time.
    The losing party may then challenge the adjudication decision in the knowledge that they are not at risk for a sum greater than has been awarded.

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