Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4

The Building and Construction Industry Security of Payment Act 1999 (NSW), by its terms, structure, context, and purpose, evinces a clear legislative intention to exclude the jurisdiction of the Supreme Court of New South Wales to grant certiorari to quash an adjudicator's determination for non-jurisdictional error of law on the face of the record. The Act provides a scheme for the rapid, interim determination of progress payment entitlements, with underlying contractual rights preserved and speed prioritized over legal finality. Judicial review for non-jurisdictional error would undermine this scheme and is therefore excluded by the statute.

Parties
Appellant: Probuild Constructions (Aust) Pty Ltd; First Respondent: Shade Systems Pty Ltd; Second Respondent: Second respondent
Jurisdiction
Australia
Judgment Date
14 February 2018
Procedural Posture
Appeal / High Court on Appeal From Supreme Court of New South Wales
Outcome
Appeal dismissed
Legal Topics
Judicial Review, Error of Law on the Face of the Record, Certiorari, Building and Construction Industry Security of Payment Act 1999 (nsw), Ouster of Supreme Court Jurisdiction, Non Jurisdictional Error
Administrative Law Construction Law Judicial Review Error of Law on the Face of the Record Certiorari Building and Construction Industry Security of Payment Act 1999 (nsw) Ouster of Supreme Court Jurisdiction Non Jurisdictional Error

Case Brief

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Parties

Probuild Constructions (Aust) Pty Ltd

Appellant

Shade Systems Pty Ltd

First Respondent

Second respondent

Second Respondent

Procedural Posture

Appeal / High Court on Appeal From Supreme Court of New South Wales

Legal Issues

  1. 1 Does the Building and Construction Industry Security of Payment Act 1999 (NSW) oust the jurisdiction of the Supreme Court of New South Wales to issue certiorari for non-jurisdictional error of law on the face of the record in adjudicator's determinations?
  2. 2 Is an adjudicator's determination under the Act susceptible to judicial review for non-jurisdictional error of law?

Ratio Decidendi

The Building and Construction Industry Security of Payment Act 1999 (NSW), by its terms, structure, context, and purpose, evinces a clear legislative intention to exclude the jurisdiction of the Supreme Court of New South Wales to grant certiorari to quash an adjudicator's determination for non-jurisdictional error of law on the face of the record. The Act provides a scheme for the rapid, interim determination of progress payment entitlements, with underlying contractual rights preserved and speed prioritized over legal finality. Judicial review for non-jurisdictional error would undermine this scheme and is therefore excluded by the statute.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed. It was a condition of the grant of special leave to appeal that Probuild would pay Shade Systems' costs of the appeal to this Court. It is unnecessary to make an order as to costs.