Maxcon Constructions Pty Ltd v Vadasz

This case concerned an appeal to the High Court of Australia regarding a judicial review of an adjudicator's determination under the *Building and Construction Industry Security of Payment Act 2009* (SA). The dispute arose between Maxcon Constructions Pty Ltd, the head contractor, and Mr Vadasz, a subcontractor, concerning a payment claim made by Mr Vadasz. The core of the dispute involved the adjudicator's decision to disregard certain retention provisions within the subcontract, deeming them ineffective "pay when paid" provisions.

The High Court was required to determine two primary legal issues. Firstly, whether the adjudicator's determination that the subcontract's retention provisions were ineffective "pay when paid" provisions constituted an error of law. Secondly, whether the *Security of Payment Act* ousted the jurisdiction of the Supreme Court of South Australia to grant relief in the nature of certiorari for a non-jurisdictional error of law on the face of the record.

The Court reasoned that the retention provisions in the subcontract, which stipulated payment of retention monies after the achievement of a certificate of occupancy, were not "pay when paid" provisions as contemplated by the *Security of Payment Act*. Instead, they were considered to be genuine retention provisions designed to secure the subcontractor's performance. The Court held that the adjudicator had erred in law by mischaracterising these provisions and consequently exceeding their jurisdiction. However, the Court also affirmed that the *Security of Payment Act* does, in fact, oust the Supreme Court's jurisdiction to grant certiorari for such non-jurisdictional errors of law on the face of the record, although jurisdictional errors remain reviewable.

The appeal was dismissed.