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High Court says judges can’t overturn adjudicators’ determinations

07/03/2018

The High Court has resolved the controversy around the Supreme Courts jurisdiction to overturn a decision of an adjudicator properly appointed under the NSW Building and Construction Industry Security of Payment Act 1999..

The legislation gives construction contractors a statutory right to progress payments. Disputed claims may be referred to an adjudicator.

Shade Systems made a payment claim for construction work. Probuild asserted that it was owed liquidated damages and declined to pay the claim. An adjudicator was properly appointed. He rejected the liquidated damages claim and determined an amount payable to Shade Systems.

Probuild sought judicial review by the NSW Supreme Court. The primary judge quashed the adjudicator’s determination because he made errors of law. The Court of Appeal overturned that decision on the basis that the legislation excluded the Court’s jurisdiction to do so.

On appeal, the High Court held the Supreme Court cannot quash an adjudicator’s determination even if he makes a non-jurisdictional error of law that is apparent on the face of the record. The legislative scheme involves an informal, summary and quick procedure to enforce interim payments, at least; until the parties’ common law rights can be tested at trial. The clear implication is that Parliament intended that an adjudicator’s decision should be final and not subject to judicial examination.

For more detail, see PROBUILD CONSTRUCTIONS (AUST) PTY LTD v SHADE SYSTEMS PTY LTD & ANOR [2018] HCA 4

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