The parties disagreed as to the full extent of the terms of, and documents incorporated into, the contractual relationship between them. Disputes arose and Nuttall commenced an adjudication. An Adjudicator was appointed and Carter brought a Court application seeking an injunction or declarations. Carter argued that, in the absence of any clear agreement or finding as to the full extent of the contract between the parties, Nuttall could not seek either statutory or contractual adjudication. Further, the parties’ contract incorporated a clause providing for mandatory mediation before adjudication is commenced. In the alternative, if the parties could pursue adjudication, the parties had agreed to appoint a named Adjudicator.

The Judge held that it was not necessary to have a “contractual bible” to have a contract in writing for the purposes of an adjudication. s108 of the Act requires: (a) a construction contract; (b) a dispute and (c) a dispute that arises under the contract. The parties accepted there was a construction contract in existence. As such, a dispute as to whether a particular document was a contractual document in an agreed contractual relationship was a dispute under the contract and the words “construction contract” should not be given a limited construction. Therefore in principle Nuttall were entitled to an adjudication so long as a dispute had arisen and it was not caught by any precondition to adjudication.

In relation to the clause providing for mandatory mediation, it was inconsistent with the unqualified statutory entitlement to adjudication. As such, Carter was not entitled to injunctive relief, even if Nuttall had completely failed to comply with the mediation requirements in the contract clause. As a matter of construction, the named Adjudicator was not the agreed Adjudicator for the purposes of dispute or possible disputes regarding the construction of the appendix in which he was named. Therefore there was no named Adjudicator. Accordingly, the Judge did not grant the declarations sought by Carter.