Last week, the High Court heard the latest round of debate about
whether a court can overturn an adjudicator's determination of
a construction payment dispute without any "jurisdictional
error". This has been the subject of our last two bulletins
In Southern Han Breakfast Point Pty Ltd v Lewence
Construction Pty Ltd & Ors  HCATrans 173 (28 July
2016), a principal has applied to the High Court for special leave
to appeal against a decision of the NSW Court of Appeal. That Court
had overturned a decision of Justice Ball of the NSW Supreme Court
who had set aside an adjudicator's payment award to a
construction contractor under NSW security of payment
Interestingly, this means that:
the contractor applied for, and was awarded, payment from the
principal, by an adjudicator;
the NSW Supreme Court allowed the principal's appeal and
overturned the adjudicator's payment award (see Lewence
Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd
 NSWCA 288);
the Court of Appeal allowed the contractor's appeal from
the Supreme Court's decision and reinstated the
adjudicator's payment award; and
now, the principal is asking the High Court for special leave
(basically, special permission) to appeal against the Court of
appeal's decision and once again overturn the adjudicator's
Chequered history aside, this case is interesting from a legal
perspective as well, because one of the arguments that the
principal wants permission to advance in the High Court is that a
court does not need to find jurisdictional error by an adjudicator
before it can review that adjudicator's decision. This is the
same argument that led Justice Emmett, also of the NSW Supreme
Court, to overturn the adjudicator's decision in Probuild
Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd 
NSWSC 770. Intriguingly, in Lewence Construction Pty Ltd v
Southern Han Breakfast Point Pty Ltd  NSWCA 288:
the same Justice Emmett was one of the three Judges of the
Court of Appeal that reinstated the adjudicator's
the leading judgment in the Court of Appeal (by Justice Ward)
included a finding that an error of law was not a jurisdictional
Justice Emmett expressed agreement with that part of the
leading judgment and joined in allowing the appeal largely on this
basis (at  – ).
The need for jurisdictional error is one of two grounds for
appeal to be argued in the High Court if special leave is granted.
The other ground is peculiar to the "east coast" model of
adjudication and has no obvious relevance in WA. We see clear
relevance in WA to the argument about jurisdictional error, though,
for reasons discussed in our earlier article: Challenging Adjudications: A New Era?
As this saga unfolds, we will keep updating friends and
followers of HHG Legal Group on what it all means for the
construction industry in WA and around Australia.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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