KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ. The Building and Construction Industry Security of Payment Act 1999 (NSW) ("the Security of Payment Act") establishes a scheme of rights and procedures relating to the receipt and recovery by contractors of progress payments for construction work. Under the scheme, disputed payment claims may be referred for determination by an adjudicator.
The only question in this appeal is whether the scheme established by the Security of Payment Act for claims for, and payment of, progress payments ousts the jurisdiction of the Supreme Court of New South Wales to make an order in the nature of certiorari to quash a determination by an adjudicator for error of law on the face of the record that is not a jurisdictional error. The answer is yes: the Security of Payment Act does oust that jurisdiction.
The Security of Payment Act
Enacted in 1999, the Security of Payment Act was followed by closely equivalent statutes in Victoria, Queensland, the Australian Capital Territory, South Australia and Tasmania.
The object of the Security of Payment Act is "to ensure that any person who undertakes to carry out construction work (or who undertakes to supply related goods and services) under a construction contract is entitled to receive, and is able to recover, progress payments in relation to the carrying out of that work and the supplying of those goods and services".
The means by which the Security of Payment Act ensures that a person is entitled to a progress payment is by "granting a statutory entitlement to such a payment regardless of whether the relevant construction contract makes provision for progress payments".
The statutory entitlement to progress payments is provided for in s 8. "[P]rogress payment" is defined in s 4(1) to include the final payment for construction work carried out (or for related goods and services supplied) under a construction contract, a single or one‑off payment for such work or supplies, and a "milestone payment" (a payment that is based on an event or date).
As explained in s 3(3), the procedure for recovering such a payment requires:
"(a) the making of a payment claim by the person claiming payment, and
(b) the provision of a payment schedule by the person by whom the payment is payable, and
(c) the referral of any disputed claim to an adjudicator for determination, and
(d) the payment of the progress payment so determined."
That procedure is set out in Pt 3 ("Procedure for recovering progress payments"). Section 13(1) provides that a person who is or who claims to be entitled to a progress payment (the "claimant") may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make a payment. The payment claim must identify the relevant construction work (or related goods and services) and the amount of the progress payment that the claimant claims to be due (the "claimed amount").
Section 14(1) provides that a person on whom a payment claim is served (the "respondent") may reply to the claim by providing a payment schedule to the claimant. The payment schedule must indicate the amount of the payment (if any) that the respondent proposes to make (the "scheduled amount"). If the scheduled amount is less than the claimed amount, the payment schedule must indicate why that is so and, if the respondent is withholding payment, the respondent's reasons for withholding payment.
If a claimant serves a payment claim on a respondent and the respondent does not provide a payment schedule within 10 business days (or earlier, if required by the construction contract), s 14(4) makes the respondent liable to pay the claimed amount on the due date for the progress payment. Any outstanding amount not paid on or before the due date is recoverable as a debt in a court of competent jurisdiction. The position is the same if the respondent provides a payment schedule but does not pay the scheduled amount by the due date. Alternatively, the claimant may apply in either case for adjudication of the payment claim.
Division 2 of Pt 3 deals with the adjudication of disputes. Section 17(1) provides:
"A claimant may apply for adjudication of a payment claim (an adjudication application) if:
(a) the respondent provides a payment schedule under Division 1 but:
(i) the scheduled amount indicated in the payment schedule is less than the claimed amount indicated in the payment claim, or
(ii) the respondent fails to pay the whole or any part of the scheduled amount to the claimant by the due date for payment of the amount, or
(b) the respondent fails to provide a payment schedule to the claimant under Division 1 and fails to pay the whole or any part of the claimed amount by the due date for payment of the amount."
An adjudication application is to be made to an authorised nominating authority, which must refer the application to an adjudicator as soon as practicable. Where the respondent has failed to provide a payment schedule, an adjudication application cannot be made unless the claimant notifies the respondent, within 20 business days immediately following the due date for payment, of the claimant's intention to apply for adjudication of the payment claim and the respondent has been given an opportunity to provide a payment schedule to the claimant within five business days after receiving the claimant's notice.
The respondent may lodge with the adjudicator a response to the claimant's adjudication application only if the respondent provided a payment schedule within the time specified in s 14(4) or s 17(2)(b). That response must be lodged within five business days after receiving a copy of the application or two business days after receiving notice of the adjudicator's acceptance of the application, whichever is the later date. The response may contain submissions but it cannot include reasons for withholding payment that were not included in the payment schedule provided to the claimant.
Section 21(3) requires the adjudicator to determine an application "as expeditiously as possible" and, in any case, within 10 business days after the date on which the adjudicator notified the claimant and the respondent of acceptance of the application or within such further time as agreed by the parties.
Any proceedings to determine an adjudication application are conducted informally. They may be conducted by a conference and the parties are not entitled to legal representation at any such conference.
The task of the adjudicator is set out in s 22. Sub‑sections (1) and (2) provide as follows:
"(1) An adjudicator is to determine:
(a) the amount of the progress payment (if any) to be paid by the respondent to the claimant (the adjudicated amount), and
(b) the date on which any such amount became or becomes payable, and
(c) the rate of interest payable on any such amount.
(2) In determining an adjudication application, the adjudicator is to consider the following matters only:
(a) the provisions of this Act,
(b) the provisions of the construction contract from which the application arose,
(c) the payment claim to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the claimant in support of the claim,
(d) the payment schedule (if any) to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the respondent in support of the schedule,
(e) the results of any inspection carried out by the adjudicator of any matter to which the claim relates."
Under s 23(2), if the adjudicator determines that the respondent is required to pay an adjudicated amount, the respondent must pay that amount to the claimant on or before the "relevant date" as defined in s 23(1). The "relevant date" is the date occurring five business days after the adjudicator's determination is served on the respondent, unless the adjudicator determines a later date.
If the respondent fails to pay the whole or any part of the adjudicated amount to the claimant, the claimant may, under s 24, request the authorised nominating authority to whom the adjudication application was made to provide an adjudication certificate, and serve notice on the respondent of the claimant's intention to suspend carrying out construction work (or to suspend supplying related goods and services) under the contract.
Under s 25(1), the adjudication certificate may be filed as a judgment for a debt in any court of competent jurisdiction and is enforceable accordingly. However, s 25(4) also provides that, if the respondent commences proceedings to have the judgment set aside, the respondent:
"(a) is not, in those proceedings, entitled:
(i) to bring any cross-claim against the claimant, or
(ii) to raise any defence in relation to matters arising under the construction contract, or
(iii) to challenge the adjudicator's determination, and
(b) is required to pay into the court as security the unpaid portion of the adjudicated amount pending the final determination of those proceedings."
Parties may not contract out of the scheme. But the rights, duties and remedies arising under a construction contract are acknowledged and preserved by ss 3(4) and 32. In particular, s 32 clarifies that nothing in Pt 3 affects any right that a party to a construction contract may have under that contract. Moreover, nothing done under Pt 3 affects any civil proceedings arising under a construction contract except as provided in s 32(3), which provides that, in any such proceedings, a court or tribunal:
"(a) must allow for any amount paid to a party to the contract under or for the purposes of this Part in any order or award it makes in those proceedings, and
(b) may make such orders as it considers appropriate for the restitution of any amount so paid, and such other orders as it considers appropriate, having regard to its decision in those proceedings."
Facts
Probuild Constructions (Aust) Pty Ltd ("Probuild") and Shade Systems Pty Ltd ("Shade Systems") were parties to a subcontract under which Shade Systems agreed to supply and install external louvres for an apartment development.
On 23 December 2015, Shade Systems served on Probuild a payment claim pursuant to s 13 of the Security of Payment Act stating that a progress payment of $294,849.33 (excluding GST) was due.
On 11 January 2016, Probuild provided a payment schedule pursuant to s 14 of the Security of Payment Act indicating that it did not propose to pay any of the amount claimed. Probuild relevantly contended that it was entitled to set off, against the amount in the payment claim, a considerably higher amount for liquidated damages ($1,089,900.00) which it asserted was owing because works were not completed before the "Date for Practical Completion" in the subcontract.
Pursuant to s 17 of the Security of Payment Act, Shade Systems applied for adjudication of its payment claim. The adjudicator rejected Probuild's liquidated damages claim on the basis that liquidated damages could not be calculated until either "practical completion" (being actual completion of the works) or termination of the subcontract. The adjudicator determined that the amount of the progress payment payable by Probuild to Shade Systems was $277,755.03 (including GST).
Proceedings for certiorari
Probuild sought, under s 69 of the Supreme Court Act 1970 (NSW), an order in the nature of certiorari quashing the determination of the adjudicator. The primary judge (Emmett AJA) did not consider that the Security of Payment Act excluded the jurisdiction of the Supreme Court to make an order in the nature of certiorari for error of law on the face of the record. Emmett AJA made the order sought by Probuild on two bases: first, the adjudicator erroneously considered that no entitlement to liquidated damages arose until practical completion or termination of the subcontract; and second, the adjudicator erroneously considered that Probuild needed to demonstrate that Shade Systems was at fault for the delay for which it claimed liquidated damages.
Shade Systems appealed to the Court of Appeal of the Supreme Court of New South Wales. The only issue pressed at the hearing of the appeal was the jurisdictional issue: whether the Security of Payment Act excluded the jurisdiction of the Supreme Court to make an order in the nature of certiorari for error of law on the face of the record. Basten JA (with whom Bathurst CJ, Beazley P, Macfarlan and Leeming JJA agreed) held that the Supreme Court did not have jurisdiction to quash an adjudicator's determination for error of law on the face of the record.
In its appeal by special leave to this Court, Probuild contended that the jurisdiction of the Supreme Court to make an order in the nature of certiorari to quash an adjudicator's determination for error of law on the face of the record that is not a jurisdictional error had not been ousted. Although it accepted that the jurisdiction could be ousted, it submitted that "clear words" to that effect were necessary. During the course of oral argument, Probuild accepted that if, as a matter of statutory construction, there was a clear legislative intention to oust the jurisdiction, that would be sufficient in the absence of an express statement to that effect. However, Probuild contended that, in the absence of express words, the Security of Payment Act otherwise revealed no clear legislative intention that the jurisdiction to quash an exercise or purported exercise of power for error of law on the face of the record was ousted in relation to an adjudicator's determination under that Act.
Probuild's appeal to this Court was heard together with another appeal, from a decision of the Full Court of the Supreme Court of South Australia, in which the same issue arose in relation to the equivalent statute in South Australia. There, the Full Court expressed support for the view that the South Australian legislation did not exclude the jurisdiction to make an order in the nature of certiorari for error of law on the face of the record, but ultimately followed the reasoning of the Court of Appeal of the Supreme Court of New South Wales in the decision presently under appeal.
Availability of certiorari
The jurisdiction of the Supreme Court of New South Wales to make an order in the nature of certiorari is an aspect of its jurisdiction as "the superior court of record" in that State. The jurisdiction is exercised by judgment or order, not by writ.
The function of an order in the nature of certiorari is to remove the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights.
The principal basis for making such an order is jurisdictional error, thus enforcing the limits of a decision-maker's functions and powers. The jurisdiction of a State Supreme Court to review an exercise or purported exercise of power for jurisdictional error, and to grant relief in the nature of certiorari (and prohibition and mandamus) where jurisdictional error is found, serves to enforce the limits of State executive and judicial power. In that sense, it may aptly be described as a "supervisory jurisdiction". As was explained in Kirk v Industrial Court (NSW), that supervisory jurisdiction was and is a defining characteristic of the State Supreme Courts.
Unlike the supervisory jurisdiction enforcing the limits of executive and judicial power, the jurisdiction of a Supreme Court to review, and to make an order in the nature of certiorari, for error of law on the face of the record is not part of the defining characteristics of the State Supreme Courts. This jurisdiction may be ousted by statute.
In Craig v South Australia, this Court rejected what was described as an "expansive" approach to certiorari which conceived of the "record" of an inferior court as including both the reasons for decision and the transcript of proceedings, holding that, in the absence of statutory provision to the contrary, the record did not ordinarily include the reasons for decision. After the decision in Craig, the Supreme Court Act was amended to declare in s 69(3) that the jurisdiction of the Supreme Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. The Supreme Court Act was also amended to provide in s 69(4) that "the face of the record" includes the reasons expressed by the court or tribunal for its ultimate determination.
Section 69(5) of the Supreme Court Act recognises that the declaration in s 69(3) that the Supreme Court has jurisdiction to make an order in the nature of certiorari for error of law on the face of the record does not affect the operation of any legislative provision to the extent that that provision is, "according to common law principles and disregarding [s 69(3) and (4)], effective to prevent the Court from exercising its powers to quash or otherwise review a decision".
It is a noteworthy feature of our legal history that it has long been taken as axiomatic that inferior courts or tribunals exercise their powers under the supervision of the superior courts in accordance with the law as expounded and applied by those courts. As Brennan J said in Attorney-General (NSW) v Quin, "the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise".
An intention to alter the settled and familiar role of the superior courts must be clearly expressed. But the question is a matter of statutory construction; and in the resolution of such a question, context is, as always, important. The Security of Payment Act contains no privative clause providing in terms that an adjudicator's determination is not to be quashed by way of certiorari on the basis of error of law on the face of the record. But that is not the end of the inquiry. There remains for consideration the question whether, absent an express statement but read as a whole, the Security of Payment Act has that effect. Whether it does depends on examination of the text, context and purpose of the Security of Payment Act. In undertaking that process, "[w]hether and when the decision of an inferior court or other decision-maker should be treated as 'final' (in the sense of immune from review for error of law) cannot be determined without regard to a wider statutory and constitutional context".
Certiorari for error of law on the face of the record ousted
The Security of Payment Act evinces a clear legislative intention to exclude the jurisdiction of the Supreme Court to make an order in the nature of certiorari to quash an adjudicator's determination for non-jurisdictional error of law on the face of the record.
First, it is to be recalled that the Security of Payment Act was enacted "to reform payment behaviour in the construction industry" by seeking to ensure that a person who undertakes to carry out construction work under a construction contract is entitled to receive, and is able to recover, progress payments promptly in relation to the carrying out of that work. In particular, it was designed to "stamp out the practice of developers and contractors delaying payment to subcontractors and suppliers". And it achieves that objective by setting up a scheme, including a "unique form of adjudication of disputes over the amount due for payment", which is, as Basten JA observed in the Court of Appeal, "coherent, expeditious and self-contained". The intended result is that "each party knows precisely where they stand at any point of time".
Second, it is important to appreciate the subject matter of the Security of Payment Act. The Security of Payment Act is not concerned with finally and conclusively determining the entitlements of parties to a construction contract. Section 8 confers an entitlement to a progress payment, which may be the final payment, a single or one‑off payment or what is described as a "milestone payment". Part 3 of the Security of Payment Act creates a distinct procedure for enforcing that statutory entitlement, which includes the making of a payment claim, the provision of a payment schedule in response and the determination of a payment claim by an adjudicator (at the option of the claimant).
The statutory entitlement to a progress payment and the procedure for recovery of a progress payment are separate from, and in addition to, a contractor's entitlement under a construction contract to receive payment for completed work. The statutory entitlement is predicated upon the existence of a construction contract, but the entitlement and the means available for its enforcement stand apart from the parties' rights under that contract. Indeed, the Security of Payment Act has effect despite any contractual provision to the contrary: any purported derogation is void. Moreover, the Security of Payment Act acknowledges and preserves parties' contractual entitlements. Importantly, the Security of Payment Act provides that in any proceedings before a court or tribunal in relation to any matter arising under a contract, the court or tribunal must allow for, and may make such orders as it considers appropriate for the restitution of, any amount paid under or for the purposes of Pt 3.
As was described in Southern Han Breakfast Point Pty Ltd (In liq) v Lewence Construction Pty Ltd, the Security of Payment Act was the subject of substantial amendments in 2002. Introducing the Bill for the Building and Construction Industry Security of Payment Amendment Act 2002 (NSW), the responsible Minister stated:
"[The Security of Payment Act] was designed to ensure prompt payment and, for that purpose, [the Security of Payment Act] set up a unique form of adjudication of disputes over the amount due for payment. Parliament intended that a progress payment, on account, should be made promptly and that any disputes over the amount finally due should be decided separately. The final determination could be by a court or by an agreed alternative dispute resolution procedure. But meanwhile the claimant's entitlement, if in dispute, would be decided on an interim basis by an adjudicator, and that interim entitlement would be paid."
The Security of Payment Act does not speak of "interim" entitlements and payments, but the label aptly reflects how the statutory entitlement interacts with any underlying contractual liability. In that respect, the statutory entitlement established by the Security of Payment Act stands in marked contrast to the sort of final determination provided for in the legislative scheme considered in Hockey v Yelland, the effect of which was permanent.
Third, underpinning the "interim" statutory entitlement is an understanding that "[c]ash flow is the lifeblood of the construction industry". Put another way, any interruption to the cash flow of a person carrying out construction work is apt to create the risk of financial failure. Consistent with that understanding, the procedure in Pt 3 is designed to operate quickly. So much is apparent from the detailed time limits that apply at each stage and have been described earlier in these reasons. These time limits are "carefully calibrated". The time limits have been rightly described as imposing "brutally fast" deadlines on the claimant, the respondent and the adjudicator to ensure the prompt resolution of payment disputes.
Moreover, the time frames are not conducive to lengthy consideration by an adjudicator of detailed submissions on all questions of law. Indeed, as a result of the combined operation of ss 20(1) and 21(3) of the Security of Payment Act, an adjudicator can have as few as five business days after receiving the respondent's response to the adjudication application to determine the amount of the progress payment to be paid by the respondent and the date on which it becomes payable. In that limited time, the adjudicator must consider the provisions of the Security of Payment Act, the provisions of the construction contract from which the application arose, the payment claim (and any accompanying submissions and documentation), the payment schedule (and any accompanying submissions and documentation) and the results of any inspection carried out by the adjudicator.
Fourth, the Security of Payment Act permits informal procedures in the conduct of any proceedings to determine an adjudication application. An adjudicator may, for example, call a conference of the parties, which is to be conducted informally and without any entitlement to legal representation.
Fifth, consistent with the objective of providing a "speedy and effective means of ensuring cash flow to builders from the parties with whom they contract", there are other aspects of the scheme which reinforce the conclusion that an adjudicator's determination is not subject to judicial review for non‑jurisdictional error of law. There is no right of appeal from the determination of an adjudicator under the Security of Payment Act. And that omission was deliberate. Next, the Security of Payment Act provides that an adjudication certificate may be filed by the claimant as a judgment for a debt in a court of competent jurisdiction. If the respondent commences proceedings to have the judgment set aside, the respondent is not entitled to bring any cross‑claim against the claimant, to raise any defence in relation to matters arising under the construction contract or to challenge the adjudicator's determination. In addition, the respondent must pay into court as security the unpaid portion of the adjudicated amount pending the final determination of those proceedings.
Having regard to the above matters, it is right to say that the Security of Payment Act creates an entitlement that is "determined informally, summarily and quickly, and then summarily enforced without prejudice to the common law rights of both parties which can be determined in the normal manner".
That operation of the Security of Payment Act gives rise to two further propositions which together point to the exclusion of the jurisdiction of the Supreme Court to review and to quash an adjudicator's determination for non‑jurisdictional error of law on the face of the record.
First, the absence of judicial review for error of law on the face of the record does not entrench for all time the consequences of a non-jurisdictional error of law. To speak of an adjudicator's determination as being final obscures the fact that a party is not left without recourse where an adjudicator errs within jurisdiction in determining the amount of a progress payment. A determination does not of itself give rise to any issue estoppel for the purposes of civil proceedings arising under a construction contract. As ss 3(4) and 32 make plain, the ability of a party to enforce contractual rights, including where an adjudicator has erred in determining the amount of a progress payment, is undiminished.
Second, the operation of the statutory scheme, including its preservation of parties' contractual entitlements, affirmatively supports the conclusion that review for non-jurisdictional error of law on the face of the record is excluded. The clear legislative intention is to ensure that the statutory entitlement can be determined and enforced with minimal delay. The Security of Payment Act defers the final determination of contractual rights to a different forum, in which the consequences of any erroneous determination can and must be taken into account.
By contrast, it would not be consistent with the terms, structure or purposes of the statutory scheme to read the Security of Payment Act as not interfering with the bases upon which an adjudicator's determination may be judicially reviewed and quashed. To permit potentially costly and time‑consuming judicial review proceedings to be brought on the basis of error of law on the face of the record, regardless of whether an adjudicator had exceeded the limits of their statutory functions and powers, would frustrate the operation and evident purposes of the statutory scheme. The jurisdiction to make an order in the nature of certiorari to quash an adjudicator's determination for error of law on the face of the record has been excluded.
It is not necessary in these circumstances to examine any wider question which might arise in relation to the jurisdiction of a State Supreme Court, in other kinds of cases, to grant relief in the nature of certiorari for error of law on the face of the record. As was explained in Re McBain; Ex parte Australian Catholic Bishops Conference, the jurisdiction is long‑established. There may or may not be difficulties and anomalies arising from or in connection with the jurisdiction, where it survives. If there are issues of those kinds, they were not raised or debated in the argument of this appeal (or the related appeal in Maxcon Constructions Pty Ltd v Vadasz). They need not be, and are not, considered here.
In this Court, Probuild relied on the fact that the Security of Payment Act does not exclude review for jurisdictional error, a matter of significance to the Full Court of the Supreme Court of South Australia in Maxcon Constructions Pty Ltd v Vadasz (No 2). It was said that this reduced the force of the argument that review for non‑jurisdictional error of law on the face of the record would undermine the statutory purposes. That contention should be rejected. No inference can be drawn from the fact that the Security of Payment Act does not purport to exclude review for jurisdictional error. As Kirk shows, exclusion of that jurisdiction would be beyond the power of the Parliament of New South Wales. That the Parliament has not attempted to legislate beyond power says nothing about whether the Security of Payment Act evinces a clear intention to exclude the review jurisdiction of the Supreme Court to the extent that the Parliament had power to do so: relevantly, to prevent an order in the nature of certiorari being made on the basis of non‑jurisdictional error of law.
Finally, it takes the matter no further to say, as Probuild submitted, that it is "absurd" that a "manifestly" erroneous determination, in the sense that it is affected by non-jurisdictional error of law, may stand. A non‑jurisdictional error of law may have serious consequences. But those consequences are dealt with by s 32 of the Security of Payment Act. The limited exclusion of review does not irrevocably entrench the consequences of an erroneous determination. Where it is contended that an adjudicator has made an error of law within jurisdiction, resulting in a progress payment that is inadequate or excessive, the dispute may be resolved through civil proceedings under the construction contract. If necessary, a restitutionary order can be sought. The risk that the party placed at an advantage by an underpayment or overpayment may later become incapable of meeting such an order is a risk that is assigned to the other party. What Probuild characterised as an "absurd" outcome is more aptly seen as the coherent application of a statutory choice of forum rule. And private law proceedings in relation to a progress payment under a construction contract can hardly be expected to be less convenient than judicial review proceedings.
This understanding of the scheme of the Security of Payment Act accords with the earlier decision of the Court of Appeal of the Supreme Court of New South Wales in Brodyn Pty Ltd v Davenport. In the present case, the Court of Appeal followed Brodyn in this respect. It was right to do so. It would have been a strong thing for that Court, as indeed it would be for this Court, to have taken any other course. Since the decision in Brodyn, the Parliament of New South Wales has twice had occasion to revisit the Security of Payment Act to make substantial amendments to its provisions. No amendment was made to alter the effect of the decision in Brodyn. That circumstance is a powerful reason for rejecting any suggestion that the understanding of the legislation adopted in Brodyn, and given effect in the decision of the Court of Appeal in this case, was other than a faithful reflection of the intention of the legislature.
For these reasons, the Court of Appeal was correct to conclude that the Security of Payment Act has the effect that the Supreme Court does not have jurisdiction enabling it to quash an adjudicator's determination for error of law on the face of the record. This being so, it is neither necessary nor appropriate to consider how an order in the nature of certiorari might be framed in such a way as to recognise that the time limits fixed by the Security of Payment Act do not easily accommodate the intervention of judicial review proceedings which lead to a determination being quashed.
Order
The appeal should be dismissed. It was a condition of the grant of special leave to appeal that Probuild would pay Shade Systems' costs of the appeal to this Court. It is therefore unnecessary to make an order as to costs.