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Review of Security of Payment Determinations

No review for error of law on the face of the record: NSW

A unanimous five-member New South Wales Court of Appeal has confirmed that determinations under the Building and Construction Industry Security of Payment Act 1999 (NSW) are not subject to judicial review for error of law on the face of the record under s 69 of the Supreme Court Act 1970 (NSW). Reviews are confined to jurisdictional error.

In Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] FICR 38; [2016] NSWCA 379 at [67], Bathurst CJ, Beazley P, Macfarlane and Leeming JJA agreed with Basten JA that to a significant extent, the coherent and expeditious procedure provided by the Act would be undermined if a determination were to be subject to judicial review in the supervisory jurisdiction of the Court for any error of law which might be identified in the reasons given by the adjudicator.

The decision clarifies the earlier Court of Appeal decision in Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 about which they had been some doubt owing to the language used there of determinations being reviewable for a failure to comply with "essential prerequisites" to a determination. In Shade Systems, Basten JA said that that phrase could mean review for jurisdictional error or perhaps something narrower.

Read the full head note here.