May the referring party exclude a defence, and may either party rely on evidence not exchanged before adjudication?
The notice defines the referred dispute, but the referring party cannot ordinarily obtain a monetary decision while excluding a genuine defence to that claim. The parties are not confined to evidence or arguments exchanged before the notice.
Any defence to the referred claim may be advanced, but affirmative relief outside the dispute requires its own jurisdictional basis
A respondent may rely on a factual or legal ground that defeats or reduces the referred claim even if that ground was not articulated before adjudication. That principle does not allow the respondent to enlarge the reference into a separate claim for payment or relief beyond what is needed as a defence. New evidence can be admitted if it addresses the referred dispute and the other party receives a fair opportunity to answer it. The adjudicator should classify each response item as defence, set-off used defensively, or independent counterclaim before deciding jurisdiction.
| Issue | Position |
|---|---|
| New ground defeating the claim | Ordinarily admissible as a defence |
| Evidence supporting referred issue | May be introduced subject to fairness |
| Defensive set-off reducing recovery | Assess within the dispute |
| Independent claim for net payment | Requires jurisdictional basis |
| Late material with no response opportunity | Natural-justice risk |
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