MCL had not actually advanced a case in the adjudication that its prevention of RYC’s return to site by barring access was an acceptance of RYC’s repudiatory breach; thus there was no obligation to consider that question. The case MCL did advance was that its termination notice was a valid acceptance of RYC’s breach. The adjudicator had dealt “head on” with that question and concluded the notice was not a valid acceptance. In the absence of a valid acceptance, MCL’s case on repudiation failed on the merits. Even though the adjudicator was wrong to conclude that the question of RYC’s repudiatory conduct was outside his jurisdiction, this ultimately had no bearing on his decision. There had been no breach of natural justice.
Comment
As always, each case turns on its own facts. Principles derived from previous cases may need to be refined to cover new situations, as here. It may be necessary to descend into more or less detail. Sometimes even the consideration of sub issues can be important to the outcome. In the end, it all depends on what is necessary to determine the dispute. Once again parties are reminded that the referral notice can cut down the scope of the dispute but cannot cut out what the responding party may raise in defence.
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