Builtcom Constructions Pty Ltd v VSD Investments Pty Ltd as trustee for the VSD Investments Trust (No 2)

Builtcom Constructions Pty Ltd (the appellant) sought judicial review of a decision made by an adjudicator under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The dispute concerned whether the adjudicator had erred in law by finding that certain submissions made by the appellant were not "duly made" and therefore not considered in the adjudication determination. The matter came before the Court of Appeal of New South Wales, with Leeming, Adamson and Free JJA presiding.

The primary legal issue before the Court of Appeal was whether the adjudicator's determination that certain submissions were not "duly made" constituted a reviewable error of law, or more specifically, a jurisdictional error. This question involved an examination of the provisions of the *Building and Construction Industry Security of Payment Act 1999* (NSW), particularly sections relating to the making and consideration of submissions in the adjudication process. The appellant contended that the adjudicator's exclusion of these submissions was an error that vitiated the determination.

The Court of Appeal dismissed the appeal, finding that the adjudicator's assessment of whether submissions were "duly made" was within the scope of the adjudicator's powers and did not amount to jurisdictional error. The Court applied principles of statutory interpretation to the relevant sections of the Act, concluding that the adjudicator had correctly exercised their jurisdiction in evaluating the timeliness and form of the appellant's submissions. The Court held that the adjudicator's decision on this point was not amenable to judicial review on the grounds of error of law.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondents' costs.