Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379

Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379

On the proper construction of the Building and Construction Industry Security of Payment Act 1999 (NSW), read with s 69 of the Supreme Court Act 1970 (NSW), judicial review of an adjudicator's determination is precluded except for jurisdictional error. The errors found by the primary judge were non-jurisdictional errors of law in construing the subcontract, and therefore did not provide a basis to quash the adjudicator's determination.

Jurisdiction
Australia
Judgment Date
23 December 2016
Procedural Posture
Appeal From Supreme Court, Equity Division Proceedings Seeking Judicial Review of an Adjudicator's Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Court of Appeal; Appeal Against Orders Quashing Adjudicator's Determination and Remitting the Matter
Outcome
Appeal allowed; orders of the Equity Division set aside; summons dismissed; costs ordered against the first respondent.
Legal Topics
['security of Payment Adjudication' 'judicial Review' 'error of Law on the Face of the Record' 'jurisdictional Error' 'supervisory Jurisdiction of the Supreme Court' 'application to Reopen Earlier Authority' 'principle of Legality']
['building and Construction' 'administrative Law' 'civil Procedure' 'statutory Interpretation'] ['security of Payment Adjudication' 'judicial Review' 'error of Law on the Face of the Record' 'jurisdictional Error' 'supervisory Jurisdiction of the Supreme Court' 'application to Reopen Earlier Authority' 'principle of Legality']

Case Brief

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Procedural Posture

Appeal From Supreme Court, Equity Division Proceedings Seeking Judicial Review of an Adjudicator's Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Court of Appeal; Appeal Against Orders Quashing Adjudicator's Determination and Remitting the Matter

Legal Issues

  1. 1 ['Whether a determination of an adjudicator under the Building and Construction Industry Security of Payment Act 1999 (NSW) may be quashed for non-jurisdictional error of law on the face of the record.' 'Whether Brodyn Pty Ltd v Davenport and related authority precluded review for non-jurisdictional error of law on the face of the record, or should be reopened.' "Whether the Security of Payment Act, construed with s 69 of the Supreme Court Act 1970 (NSW), restricted the Supreme Court's supervisory jurisdiction to jurisdictional error."]

Ratio Decidendi

On the proper construction of the Building and Construction Industry Security of Payment Act 1999 (NSW), read with s 69 of the Supreme Court Act 1970 (NSW), judicial review of an adjudicator's determination is precluded except for jurisdictional error. The errors found by the primary judge were non-jurisdictional errors of law in construing the subcontract, and therefore did not provide a basis to quash the adjudicator's determination.

Court Disposition

Appeal allowed; orders of the Equity Division set aside; summons dismissed; costs ordered against the first respondent.

Orders

  • ['Allow the appeal and set aside the orders made in the Equity Division on 15 June 2016.' 'In place thereof, order that the summons filed on 29 February 2016 be dismissed and that the plaintiff (Probuild Constructions (Aust) Pty Ltd) pay the costs of the first defendant (Shade Systems Pty Ltd) in the Division and...