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Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2)

Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2)

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Case Copied 23 December 2016 50 min read

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Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379
Hearing dates: 6 December 2016
Decision date: 23 December 2016
Before: Bathurst CJ and Beazley P at [1];
Basten JA at [2];
Macfarlan JA at [91];
Leeming JA at [92]
Decision:
(1)   Allow the appeal and set aside the orders made in the Equity Division on 15 June 2016.

(2)   In place thereof, order that the summons filed on 29 February 2016 be dismissed and that the plaintiff (Probuild Constructions (Aust) Pty Ltd) pay the costs of the first defendant (Shade Systems Pty Ltd) in the Division and the costs of the second defendant (Doron Rivlin) on a submitting basis.
(3)   Order that the first respondent pay the appellant’s costs in this Court and the costs of the second respondent, the latter to be assessed on a submitting basis.
Catchwords:
BUILDING AND CONSTRUCTION – adjudication of payment claim – review of adjudicator’s decision – whether review available for non-jurisdictional error of law on the face of the record

CIVIL PROCEDURE – application to reopen earlier judgment of Court – decision as to scope of supervisory jurisdiction – consideration of subsequent authorities – resolving uncertainty in reasoning
STATUTES – scope of supervisory jurisdiction of Supreme Court – whether jurisdiction restricted absent an express privative clause – whether jurisdiction limited to non-jurisdictional errors of law on face of record – inter-relationship of Supreme Court Act 1970 (NSW), s 69 and Building and Construction Industry Security of Payment Act 1999 (NSW)
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 13, 14, 17, 19, 20, 21, 22, 23, 24, 25, 27, 30, 32, 34; Pt 3
Building and Construction Industry (Security of Payment) Act 2009 (ACT), s 43
Building and Construction Industry Payments Act 2004 (Qld), ss 31, 100
District Court Act 1973 (NSW), s 176
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Amflo Constructions Pty Ltd v Jefferies [2003] NSWSC 856; 20 BCL 452
Attorney-General for the Northern Territory v Emmerson (2014) 253 CLR 393; [2014] HCA 13
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190
Coco v The Queen (1994) 179 CLR 427
Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368
Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229; 21 BCL 364
Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385; [2005] NSWCA 228
Craig v South Australia (1995) 184 CLR 163
Downer Construction (Australia) Pty Ltd v Energy Australia (2007) 69 NSWLR 72; [2007] NSWCA 49
Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240
Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWCA 379
Decision Date: 23 December 2016

CaseChat Overview and Summary

Shade Systems Pty Ltd appealed to the Court of Appeal of New South Wales against an earlier decision of the Equity Division concerning the review of an adjudicator's determination under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The dispute arose from a payment claim made by Shade Systems against Probuild Constructions. The Equity Division had found that the Supreme Court possessed a supervisory jurisdiction to review the adjudicator's decision for non-jurisdictional errors of law appearing on the face of the record.

The central legal issues before the Court of Appeal were whether the Supreme Court's supervisory jurisdiction, as conferred by section 69 of the *Supreme Court Act 1970* (NSW), was restricted in a manner that limited its review of an adjudicator's decision under the *Security of Payment Act* to jurisdictional errors only, or if it extended to non-jurisdictional errors of law on the face of the record. The Court also considered the impact of subsequent authorities on the scope of this supervisory jurisdiction, particularly in the absence of an express privative clause in the *Security of Payment Act*.

The Court of Appeal, by majority, allowed the appeal. It reasoned that the *Security of Payment Act* did not contain a privative clause that would exclude the Supreme Court's supervisory jurisdiction. Furthermore, the Court held that section 69 of the *Supreme Court Act* conferred a broad supervisory jurisdiction that was not limited to jurisdictional errors. The Court concluded that the Equity Division had erred in its assessment of the scope of this jurisdiction, and that the application for review should not have been entertained on the basis it was.

Consequently, the Court of Appeal set aside the orders of the Equity Division and dismissed Probuild Constructions' summons. Probuild Constructions was ordered to pay the costs of Shade Systems in the Division and the costs of the second defendant on a submitting basis. The Court also ordered Probuild Constructions to pay Shade Systems' costs in the Court of Appeal, with the costs of the second respondent to be assessed on a submitting basis.

Orders

Orders of the court

(1) Allow the appeal and set aside the orders made in the Equity Division on 15 June 2016.

(2) In place thereof, order that the summons filed on 29 February 2016 be dismissed and that the plaintiff (Probuild Constructions (Aust) Pty Ltd) pay the costs of the first defendant (Shade Systems Pty Ltd) in the Division and the costs of the second defendant (Doron Rivlin) on a submitting basis.

(3) Order that the first respondent pay the appellant’s costs in this Court and the costs of the second respondent, the latter to be assessed on a submitting basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379
Hearing dates:	6 December 2016
Decision date:	23 December 2016
Before:	Bathurst CJ and Beazley P at [1]; Basten JA at [2]; Macfarlan JA at [91]; Leeming JA at [92]
Decision:	(1) Allow the appeal and set aside the orders made in the Equity Division on 15 June 2016. (2) In place thereof, order that the summons filed on 29 February 2016 be dismissed and that the plaintiff (Probuild Constructions (Aust) Pty Ltd) pay the costs of the first defendant (Shade Systems Pty Ltd) in the Division and the costs of the second defendant (Doron Rivlin) on a submitting basis. (3) Order that the first respondent pay the appellant’s costs in this Court and the costs of the second respondent, the latter to be assessed on a submitting basis.
Catchwords:	BUILDING AND CONSTRUCTION – adjudication of payment claim – review of adjudicator’s decision – whether review available for non-jurisdictional error of law on the face of the record CIVIL PROCEDURE – application to reopen earlier judgment of Court – decision as to scope of supervisory jurisdiction – consideration of subsequent authorities – resolving uncertainty in reasoning STATUTES – scope of supervisory jurisdiction of Supreme Court – whether jurisdiction restricted absent an express privative clause – whether jurisdiction limited to non-jurisdictional errors of law on face of record – inter-relationship of Supreme Court Act 1970 (NSW), s 69 and Building and Construction Industry Security of Payment Act 1999 (NSW)
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 13, 14, 17, 19, 20, 21, 22, 23, 24, 25, 27, 30, 32, 34; Pt 3 Building and Construction Industry (Security of Payment) Act 2009 (ACT), s 43 Building and Construction Industry Payments Act 2004 (Qld), ss 31, 100 District Court Act 1973 (NSW), s 176 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Amflo Constructions Pty Ltd v Jefferies [2003] NSWSC 856; 20 BCL 452 Attorney-General for the Northern Territory v Emmerson (2014) 253 CLR 393; [2014] HCA 13 Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 Coco v The Queen (1994) 179 CLR 427 Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368 Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229; 21 BCL 364 Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385; [2005] NSWCA 228 Craig v South Australia (1995) 184 CLR 163 Downer Construction (Australia) Pty Ltd v Energy Australia (2007) 69 NSWLR 72; [2007] NSWCA 49 Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221…