Brodyn Pty Ltd v Davenport

Brodyn Pty Ltd sought judicial review of an adjudicator's determination under the Building and Construction Industry Security of Payment Act 1999, arguing the adjudicator had no jurisdiction. The case was heard in the Supreme Court of New South Wales. The principal issue before the court was whether an order in the nature of certiorari could lie against an adjudicator's determination and, if so, whether such an order should be granted even though judgment had already been entered for the adjudicated amount. A secondary issue was whether section 25 of the Act rendered an order in the nature of certiorari futile.

The court found that while an adjudicator's determination could be subject to certiorari, the remedy was not appropriate once judgment had been entered for the adjudicated amount. The court emphasised that certiorari was a discretionary remedy, and the fact that judgment had already been entered meant the remedy would be futile. The court further noted that section 25 of the Act, which provides for immediate enforcement of an adjudicator's determination, supported the view that an order in the nature of certiorari would be futile. The court concluded that while the adjudicator may have erred in law or exceeded their jurisdiction, the remedy of certiorari was not available given the circumstances of the case.

The court's decision effectively denied Brodyn Pty Ltd the sought-after remedy of certiorari. The court held that the adjudicator's determination was still valid and enforceable, despite any perceived errors in law or jurisdiction. The final orders of the court dismissed Brodyn Pty Ltd's application for judicial review and affirmed the adjudicator's determination as binding and enforceable.