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

[2025] NSWCA 134

NSW Court of Appeal

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Interrogate

Catchwords

1. Building and Construction
2. › Security of payment legislation
3. › Adjudication
4. › Judicial review of adjudicator's determination
5. › Whether adjudicator's opinion that submission not 'duly made' is reviewable
6. › Whether error of law in applying 'Cardno test' was jurisdictional
7. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 17, 20, 22, 32A
1. Administrative Law
2. › Jurisdictional error
3. › Distinction between jurisdictional and non-jurisdictional error of law
4. › Whether error in determining scope of submissions amounts to jurisdictional error
5. › Whether 'subjective jurisdictional fact' doctrine applies to adjudicator's opinion on 'duly made' submissions
1. Administrative Law
2. › Remedies
3. › Discretionary refusal of relief
4. › Whether availability of common law remedy justifies refusal of mandamus
5. › Building and Construction Industry Security of Payment Act 1999 (NSW), s 32A

Quick Take

There is no inflexible rule requiring adjudicators under the Building and Construction Industry Security of Payment Act 1999 (NSW) to disregard documentation supplied with an adjudication application merely because it was not included with the payment claim and would have altered the payment schedule; however, an adjudicator's error in applying such a rule is unlikely to constitute jurisdictional error.