Chase Oyster Bar v Hamo Industries [2010] NSWCA 190

Chase Oyster Bar v Hamo Industries [2010] NSWCA 190

Determinations by adjudicators under the Building and Construction Industry Security of Payment Act 1999 (NSW) are amenable to court review for jurisdictional error. Compliance with s 17(2)(a) (service of notification within 20 business days) is a mandatory precondition: failure to comply renders the adjudicator's determination invalid for jurisdictional error. Privative clauses in the Act do not prevent the exercise of the Supreme Court's supervisory jurisdiction, as confirmed by Kirk v Industrial Relations Commission. Brodyn Pty Ltd v Davenport was incorrectly decided to the extent it excluded review for jurisdictional error in such circumstances.

Parties
Applicant: Chase Oyster Bar Pty Ltd; Applicant: Cheryl Fran; Applicant: Paul Della Marta; Respondent: Hamo Industries Pty Ltd; Respondent: Peter Finnane; Intervenor: Attorney-General of NSW; Intervening Applicant: St Hilliers Contracting Pty Ltd; Intervening Respondent: Dualcorp Civil Pty Ltd
Jurisdiction
Australia
Judgment Date
24 September 2010
Procedural Posture
Judicial Review / Court of Appeal (questions Removed From Supreme Court Equity Division)
Outcome
Questions answered: determination vitiated by jurisdictional error; Supreme Court holds supervisory power; Brodyn not to be followed where inconsistent with Kirk; costs in Court of Appeal to Chase, no other order as to costs.
Legal Topics
Judicial Review, Jurisdictional Error, Certiorari, Security of Payment, Building and Construction Industry Security of Payment Act 1999 (nsw)
Administrative Law Building and Construction Law Judicial Review Jurisdictional Error Certiorari Security of Payment Building and Construction Industry Security of Payment Act 1999 (nsw)

Case Brief

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Parties

Chase Oyster Bar Pty Ltd

Applicant

Cheryl Fran

Applicant

Paul Della Marta

Applicant

Hamo Industries Pty Ltd

Respondent

Peter Finnane

Respondent

Attorney-General of NSW

Intervenor

St Hilliers Contracting Pty Ltd

Intervening Applicant

Dualcorp Civil Pty Ltd

Intervening Respondent

Procedural Posture

Judicial Review / Court of Appeal (questions Removed From Supreme Court Equity Division)

Legal Issues

  1. 1 Whether determinations by adjudicators under the Building and Construction Industry Security of Payment Act 1999 (NSW) are amenable to certiorari for jurisdictional error
  2. 2 Whether failure to comply with s 17(2)(a) (time for notice) is a jurisdictional error vitiating a determination
  3. 3 Whether the Supreme Court's jurisdiction is limited by privative clauses under the Act

Ratio Decidendi

Determinations by adjudicators under the Building and Construction Industry Security of Payment Act 1999 (NSW) are amenable to court review for jurisdictional error. Compliance with s 17(2)(a) (service of notification within 20 business days) is a mandatory precondition: failure to comply renders the adjudicator's determination invalid for jurisdictional error. Privative clauses in the Act do not prevent the exercise of the Supreme Court's supervisory jurisdiction, as confirmed by Kirk v Industrial Relations Commission. Brodyn Pty Ltd v Davenport was incorrectly decided to the extent it excluded review for jurisdictional error in such circumstances.

Court Disposition

Questions answered: determination vitiated by jurisdictional error; Supreme Court holds supervisory power; Brodyn not to be followed where inconsistent with Kirk; costs in Court of Appeal to Chase, no other order as to costs.

Orders

  • Supreme Court, in exercise of its supervisory jurisdiction, has power to determine non-compliance with s 17(2)(a) and set aside the adjudicator's determination
  • Costs in Court of Appeal to Chase, otherwise no order as to costs