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

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.