New South Wales Court of Appeal - Decisions of Interest Search - Area of law: Building and construction


  1. 08/02/2017
    Building and construction: review of adjudicator’s decision; whether contract void or unenforceable

    Maxcon Constructions engaged Mr Vadasz to design and construct piling for an apartment building. At all material times, Mr Vadasz, who was carrying on the business under a firm name, was an undischarged bankrupt, and he had not disclosed this to Maxcon (in breach of s 269(1)(b) Bankruptcy Act 1966 (Cth)). Mr Vadasz served on Maxcon a payment claim, and Maxcon issued a payment schedule deducting a “retention sum”. An adjudicator found that the “retention sum” was rendered void by the applicable Security of Payment legislation.

    The issue on appeal was whether Maxcon was liable to pay Mr Vadasz the amount ordered by the adjudicator. This raised a question:

    • whether Mr Vadasz’s contravention of s 269(1)(b) of the Bankruptcy Act 1966 (Cth) rendered the design and construct contract void or unenforceable;
    • whether the adjudicator’s error in finding the retention sum void was a jurisdictional error; and
    • whether review is available for non-jurisdictional error of law on the face of the record.


    • Mr Vadasz’s failure to disclose his bankruptcy was a contravention of s 269(1)(b). However, this section did not render the contract void or unenforceable by Mr Vadasz. Mr Vadasz’s failure to disclose also did not render the contract void or unenforceable at common law.
    • The adjudicator erred in finding the retention sum to be void under the Security of Payment Act. However, this error was not a jurisdictional error (Hinton J dissenting). 
    • The adjudicator’s error was an error of law on the face of the record, but the Security of Payment Act impliedly excludes certiorari on the ground of error of law on the face of the record (Shade Systems [2016] NSWCA 379 applied). 

    NSWCA cases considered include:

    Chase Oyster Bar v Hamo Industries [2010] NSWCA 190; [2010] 78 NSWLR 393

    Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379

    High Court cases considered include:

    Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163

    Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531

    Maxcon Constructions Pty Ltd v Vadasz (No 2)  [2017] SASCFC 2
  2. 23/12/2016
    Building and construction: adjudication of payment claim; review of adjudicator’s decision; whether review available for non-jurisdictional error of law on the face of the record

    Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2)  [2016] NSWCA 379
  3. 25/09/2013
    Building and construction: builder’s duty to subsequent owner; latent defects in common property; duty to owners’ corporation of commercial premises
    The Owners — Strata Plan No 61288 v Brookfield Australia Investments Ltd  [2013] NSWCA 317
  4. 09/05/2013
    Building and construction: contracts; effect of certificates issued by consultants under the contract; whether certificates satisfied conditions under the contract for reduction of the security provided by the contractor for the performance of its contractual obligations; whether certificates could be construed as certifying that the relevant work was completed under the contract
    St Hilliers Construction Pty Ltd v Fitzpatrick Investments Pty Ltd  [2013] NSWCA 104
  5. 01/03/2013Singapore
    Building and construction: formal requirements for a payment claim; whether adjudicator had jurisdiction to deal with claim; where jurisdiction depended on validity of claim; Lee Wee Lick Terence (alias Li Weili Terence) v Chua Say Eng (formerly trading as Weng Fatt Construction Engineering) and Another Appeal [2013] 1 SLR 401; differences between Singapore provisions, and provisions in Australia, the United Kingdom, and New Zealand; Singapore provisions uniquely worded; Australian decisions followed; objective test to determine whether formal requirements for validity satisfied; whether formal requirements legislatively important; payment claim not invalid; appeal dismissed
    Australian Timber Products Pte Ltd v A Pacific Construction & Development Pte Ltd  [2013] SGHC 56
  6. 26/10/2011
    Building and construction: Reliance by builder on oral variation to written agreement; statute prescribing consequences of breach; Home Building Act 1989 (NSW), ss 7, 7A, 7E, 10
    Wright v Foresight Constructions Pty Ltd  [2011] NSWCA 327
  7. 13/10/2011
    Building and construction: Security of payment; application for review to State Administrative Tribunal pursuant to Construction Contracts Act 2004 (WA), s 46(1); whether review available where an adjudicator refuses to dismiss an application for adjudication under s 31(2)(a)
    Perrinepod Pty Ltd v Georgiou Building Pty Ltd  [2011] WASCA 217
  8. 13/10/2011
    Building and construction: Operation; conflict between State and Federal legislation; whether Part 3 of the Building and Construction Industry Security of Payment Act 1999 (NSW) regarding the enforcement of a statutory claim for progress payments is inconsistent with the institutional integrity of Chapter III Courts; exercise of Commonwealth judicial power; identification of "matter"
    Birdon Pty Ltd v Houben Marine Pty Ltd  [2011] FCAFC 126
  9. 22/09/2011
    Building and construction: Defective building work; whether developer's decision to use particular support system was contrary to the provisions of the Conveyancing Act 1919, s 177; whether developer failed to exercise reasonable care; apportionment of liability; whether party was a "contributing party" pursuant to the Environment Planning and Assessment Act 1979, s 109ZJ
    Lym International Pty Ltd v Marcolongo  [2011] NSWCA 303
  10. 08/09/2011
    Building and construction: Whether Home Building Act requires variations as to the work to be performed under a contract to be in writing; Home Building Act 1989 s 6 and s 7 considered
    Xu v Jinhong Design & Constructions Pty Ltd  [2011] NSWCA 277