Builtcom Constructions Pty Ltd v VSD Investments Pty Ltd as trustee for the VSD Investments Trust

Builtcom Constructions Pty Ltd (the appellant builder) and VSD Investments Pty Ltd as trustee for the VSD Investments Trust (the respondent principal) were parties to a dispute concerning an adjudication under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The primary judge had dismissed the principal's challenge to the adjudicator's determination. The appeal concerned whether the Court had the power to constrain any remitted adjudication to only those parts affected by jurisdictional error, specifically where the adjudicator had not addressed certain parts of the builder's claim, allegedly due to an erroneous finding that some submissions were not "duly made" or a failure to consider submissions.

The central legal issue on appeal was the extent of the Court's power to limit a remitted adjudication to specific parts affected by jurisdictional error. This arose from the principal's contention that the adjudicator had committed jurisdictional error by failing to consider certain submissions and by erroneously concluding that other submissions were not duly made, thereby not addressing all aspects of the builder's claim. The appeal also considered whether a stay pending appeal should be granted, given that the builder had a determination in its favour and the principal was not challenging the part of the determination relating to the amount paid into court.

The Court of Appeal dissolved the stay previously ordered by the primary judge. It directed that the funds held in court, including any further amounts paid in, together with accrued interest, be immediately paid out to the appellant builder. The Court otherwise dismissed the first respondent's notice of motion and ordered the first respondent to pay the appellant's costs of that motion. The Court's reasoning implicitly favoured the risk allocation principles embedded within the *Building and Construction Industry Security of Payment Act 1999* (NSW), particularly in circumstances where the principal did not challenge the part of the determination referable to the amount paid into court.