Security of Payment Act updates
01 May 2018
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd  HCA 4 and Maxcon Constructions Pty Ltd v Vadasz  HCA 5
These cases concerned the issue of whether the supervisory jurisdiction of the Supreme Court of NSW and South Australia with respect to adjudication determinations issued under the respective state legislation for interim progress payment for construction work arose where there was any error of law on the face of the record or only where there was jurisdictional error.
In Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd, the High Court unanimously determined that while there was no express privative clause or clause addressing the availability (or otherwise) of judicial review, the Building and Construction Industry Security off Payment Act 1999 (NSW) was nevertheless intended by the Legislature to oust the jurisdiction of the Supreme Court to grant orders in the nature of certiorari quashing adjudicator’s decisions in which an error of law was apparent on the face of the record. Judicial review of adjudication decisions is therefore limited to jurisdictional error, as recognized by the NSW Court of Appeal in Brodyn Pty Ltd v Davenport(2004) 61 NSWLR 421.
In three separate judgments, the majority (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ), Gageler J and Edelman J upheld the decision of Basten J in the NSW Court of Appeal, finding that Act did oust the jurisdiction of the Supreme Court.