The NSW Court of Appeal has ruled that an adjudicator's
determination may only be subject to review for a jurisdictional
error of law under the Building and Construction Industry
Security of Payment Act 1999 (NSW) in the decision of
Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd
(No 2) [2016] NSWCA 379 (Shade Systems), handed down
in late December 2016. Consequentially, parties who fall victim to
a non-jurisdictional error of law made by an adjudicator will not
be entitled to have a determination set aside. Instead they will
have to rely upon their contractual and other legal rights to
resolve disputes outside of the Security of Payment Act.
Background
Shade Systems was contracted to complete works for Probuild. It
made a payment claim and in turn Probuild provided a payment
schedule, which stated that Shade Systems was not entitled to the
amounts claimed. This was because a greater amount was owed from
Shade Systems to Probuild for liquidated
