Earlier this year, we announced that at about the same time in February 2017, the High Court and the NSW Court of Appeal had declined to reopen an important legal question affecting construction contractors around Australia.
That question was: can adjudicators’ determinations be challenged without the need to show jurisdictional error?
If the Courts had answered “yes”, this would have been a welcome development for construction contractors affected by adjudication decisions that are legally incorrect, but still within the adjudicator’s jurisdiction (that is, legal power to make binding decisions). Details appear in our earlier articles on the subject, linked above.
However, thanks to two applications heard together in the High Court earlier this month, contractors may yet be given the answer to this question that they were looking for. The relevant applications were made in the cases of Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd and Maxcon Constructions Pty Ltd v Vadasz and Ors  HCA Trans 112.
In each case, a contractor has asked the High Court for permission (known as special leave) to make arguments about why the NSW Court of Appeal was wrong to say that they could not challenge an adjudicator’s decision on “non-jurisdictional grounds”.
When the High Court decides whether or not to grant special leave, we will update our readers. If special leave is granted, we will be monitoring the progress of proceedings in the High Court and keeping our readers informed at every stage of this (potentially) exciting development in security of payment law.