Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd  HCA 4 and Maxcon Constructions Pty Ltd v Vadasz  HCA 5
Case note | July 2018 | Available for purchase & free for members
Probuild and Maxcon have determined that non-jurisdictional errors of law on the face of the record are not reviewable by the Supreme Courts of New South Wales and South Australia under their respective Security of Payment Acts (SOP Acts). The Queensland, ACT, Victorian and Tasmanian SOP Acts are similar and indistinguishable in their objects and intent. The High Court decisions would therefore apply to the relevant state SOP Acts, however the position in Victoria is probably different because there is no privative section in the Victorian SOP Act as required by section 85(5) of the Constitution Act 1975 (Vic). This may leave Victoria as a “one out” in regard to judicial review for non-jurisdictional errors of law on the face of the record. Maxcon also dealt with what constitutes a “pay when paid provision” under section 12(2)(c) of the SA SOP Act, which has its equivalent in each of the other states on the eastern seaboard.
We thank the author of this case note Michael Heaton QC and the journal editor Russell Thirgood for their contribution to this journal.