Security of payment laws can be effective for getting
construction contractors paid quickly for the work that they
do.
But sometimes it is necessary to challenge an adjudicator's
decision. Appeal rights are very limited in the legislation.
Since these laws were introduced around Australia in the late
1990s, it has generally been accepted that an adjudicator's
decision cannot be challenged in a court just because of a
misunderstanding of the law. In order to be challenged, the
adjudicator had to have made a decision that they had no power to
make at all.
One NSW Judge has cast doubt on this generally accepted view,
though. According to Justice Emmett in Probuild Constructions
(Aust) Pty Ltd v Shade Systems Pty Ltd [2016] NSWSC 770, the
Supreme Courts have inherent powers to review the decisions of
statutory decision makers (including adjudicators) and it would
require clear words in security of payment legislation to take
those powers away.
