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Adjudication


Rodrigues v CustomOz 
This judgment shows how protections regarding 'without prejudice' communications may interact with SOPA legislation, including where (despite the inclusion of the phrase “without prejudice”) a particular correspondence may not actually be sent for a without privilege purpose. While the requirements for SOPA Payment claims or Schedules are undemanding, it is best practice to draft such documents to clearly articulate each component as well as the document’s purpose as a whole. . 
[View Casewatch PDF]

Ceerose Pty Ltd v A-Civil Aust Pty Ltd 
This decision shows how the court may choose to uphold parts of an adjudication, while striking-down other parts, infected by jurisdictional error. The case also demonstrates how arguments to preserve part or parts of an adjudication decision which are unaffected by any alleged jurisdictional issues, may be a strategic tool for parties seeking to defend against any appeal. 
[View Casewatch PDF]

Piastrino v Seascape Constructions Pty Ltd 
This case demonstrates the Victorian Supreme Court's approach to the jurisdictional limits of the adjudication scheme under the Victorian SOP legislation and highlights the significance of separately identifying domestic and commercial works in mixed purpose developments. 
[View Casewatch PDF]

Renbar Constructions Pty Ltd v Sader 
The NSW Supreme Court has highlighted the importance of maintaining proper procedures throughout a contract in the raising and payment of progress claims and the consequences if they do not comply with the contractual requirements and the effect of an acknowledgment of the defective claims or an intention to make payment might entail during the course of later disputes.
[View Casewatch PDF]


Equa Building Services Pty Ltd v A&H Floors 2 Doors Australia
The NSW Supreme Court has highlighted the importance of clarifying the mechanisms and designated contacts for effective service. Hammerschlag J's decision also shows the repercussions of a failure to effect service of a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW).
[View Casewatch PDF]


Ventia Australia v BSA Advanced Property Solutions
The NSW Supreme Court has highlighted the importance of contract structuring in periodic subcontracts between parties and the significance of whether or not a periodic contract provides for all work to be conducted under a single contract or for multiple contracts to be created in the course of works triggering the 'one contract rule' for Adjudication claims.
[View Casewatch PDF]

Southern Cross v Magill Earthmoving
The NSW Supreme Court considered whether an adjudicator’s reasoning was so unreasonable it should squash a determination. It found in light of the statutory requirement to determine often difficult questions within a tight timeframe, unless it is found that there is a jurisdictional error or that the decision made is one that no reasonable person could have made the determination should stand.
[View Casewatch PDF]

Valeo Construction v Pentas
The Victorian Supreme Court has found that a revised payment claim constituted a prohibited second claim in relation to same reference date – Building and Construction Industry Security of Payment Act 2002 (Vic), s. 14(8).
[View Casewatch PDF]

Fitz Jersey Pty Ltd v Atlas Constructions
The NSW Court of Appeal has reinforced the robust procedures for the recovery of an adjudicated amount under the Building and Construction Industry Security of Payment Act 1999.
[View Casewatch PDF]

Shade Systems v Probuild Constructions
The NSW Supreme Court has reinforced that adjudication determinations under the Building and Construction Industry Security of Payment Act 1999 (NSW) cannot be challenged due to errors of law provided the Adjudicator is acting within jurisdiction.
[View Casewatch PDF]

Class Electrical Services v Go Electrical
Credit Applications are not necessarily construction contracts under Building and Construction Industry Security of Payment Act.
[View Casewatch PDF]

Illawarra v Denham
This case highlights the importance of identifying in a Notice of Termination, the effective date and time of termination and the effect it may have on reference dates giving rise to rights to progress claims under the Act and the inclusion of security does not give rise to an invalid claim.
[View Casewatch PDF]

Nazero Group v Top Quality Construction
Those who challenge adjudication determination must pay for the privilege. The general policy of the Building and Construction Industry Security of Payment Act 1999 (NSW) is to require a respondent to pay into Court of the adjudicated amount, when the respondent commences proceedings to set aside an adjudication determination.
[View Casewatch PDF]

Austruct Qld Pty Ltd v Independent Pub Group
The Supreme Court of Queensland confirms that a party issuing a payment claim must act honestly and to not mislead.
[View Casewatch PDF]

Denis McFadden v Daniel John Turnbull
The New South Wales Supreme Court has recently confirmed that for the Building and Construction Industry Security of Payment Act 1999 (NSW) to apply, no party to the contract must reside or propose to reside in the premises. To retain the protection of the Act, builders are best to contract only with a company.
[View Casewatch PDF]

Rail Corporation of NSW v Nebax Constructions
The New South Wales Supreme Court has recently confirmed that arguments that object to the jurisdiction of an adjudicator do not need to be part of a party's Payment Schedule, although it would be wise to include them in the Payment Schedule if they are likely to arise. The Court also highlighted the dangers of endorsing every invoice as a Payment Claim under the Act.
[View Casewatch PDF]

John Holland Pty Ltd v Walz Marine Services Pty Ltd
The Supreme Court of Queensland has recently confirmed the importance of fully defining all reasons for non-payment in a Payment Schedule as failing to do so may prevent raising new reasons later. Failure to expressly deny facts in the Payment Schedule may amount to an admission that those facts are not disputed. This case will have immediate impact on those responsible for the content of a Payment Schedule in reply to a Payment Claim.
[View Casewatch PDF]

Hansen & Yuncken -v- Ericson t/a Flea's Concreting
The Supreme Court of Queensland has recently confirmed that a respondent challenging a determination under the Security of Payments legislation will be required to secure interest as well as the adjudicated amount pending the hearing of the challenge to that adjudication determination. This case will have an immediate impact on the way in which successful claimants require security from respondents pending the hearing of a substantive claim to off set the adjudicated amount.
[View Casewatch PDF]

Steel v Beks
The New South Wales Supreme Court has recently confirmed the importance of proper service of payment claims under the BCISOP Act. Failure to properly serve a payment claim (or any other notices under the Act) in accordance with the provisions of the Act will render an adjudicator’s determination void in the event an adjudicator proceeds to determine the claim. This case has immediate impact on those responsible for the service of payment claims or other notices under the Act to ensure that it service properly effected.
[View Casewatch PDF]

Parsons Brickerhoff v Downer EDI
The Supreme Court of New South Wales has recently confirmed the breadth of the meaning of the “ordinary place of business” in respect of the BCISOP Act to include “any place at or from which the person usually engages in activities which for a not insignificant part of the person’s business". This case will have immediate impact on those serving and receiving payment claims, to ensure that they are (i) served at an ordinary place of business or (ii) at a registered office by formal service.
[View Casewatch PDF]

Lanmac v Andrew Bruce Wallace
The Supreme Court of New South Wales has recently confirmed the requirement for payment into Court of an amount determined by an adjudicator in the event a respondent wishes to challenge an adjudicator’s determination. This case illustrates that whilst determinations made under the Security of Payment legislation are interim determinations, to preserve the rights of a claimant to secure payment, an amount equal to the determination will generally need to be paid into Court if a challenge is made by a respondent.
[View Casewatch PDF]

CC No 1 & Anor v Reed
The New South Wales Supreme Court has reinforced a contractor’s right to include in payment claims made under the Building and Construction Industry Security of Payment Act, amounts which have been the subject of previous payment claims, but which remain unpaid.
[View Casewatch PDF]

Watpac -v- Austin Corp
The New South Wales Supreme Court has recently confirmed the position that the reagitation of a claim in a successive adjudication application, that has already been determined in a previous application, amounts to an abuse of process and is susceptible to the doctrine of issue estoppel.
[View Casewatch PDF]

Reed v Eire
The New South Wales Supreme Court has recently examined whether service by way of email could be considered as valid service for the purposes of the Building and Construction Industry Security of Payment Act (NSW) 1999; and found, with reference to the Electronic Transactions Act (NSW) 2000, that service could be validly affected by way of email.
[View Casewatch PDF]

Urban Traders v Paul Michael
The New South Wales Supreme Court has recently sought to define the circumstances for the application of the Dualcorp principle, promoting the operation of the BCISOP Act, to permit, in certain circumstances an opportunity to submit further payment claims including parts of payment claims which have previously been claimed. This case will have immediate impact on those drafting statutory payment claims and adjudication applications, to ensure that they include in their claims all necessary material and submissions in support of that claim and manage the claims process carefully.
[View Casewatch PDF]

Reed Construction v Dellsun
The Queensland Supreme Court has recently confirmed that a creditor’s statutory demand issued pursuant to the Corporations Act (Cth) on the basis of an adjudicator’s determination under the Building Construction Industries Payments Act 2004 (QLD) may be invalid on the basis of a genuine dispute or an offsetting claim. This case will have immediate impact on those considering issuing creditor’s statutory demands in order to recoup a progress claim affirmed by an adjudicator.
[View Casewatch PDF]

University of Sydney v Cadence
The New South Wales Supreme Court has recently broadened the application of the Dualcorp principle, narrowing the operation of the BCISOP Act, to exclude the opportunity to submit for adjudication a claim, or even part of a claim which has previously been the subject of an adjudicator’s determination. Those drafting statutory payment claims and adjudication applications, will need to ensure that they include in their claims all necessary material and submissions in support of that claim to avoid being precluded from issuing another claim.
[View Casewatch PDF]

Dualcorp v Remo Appeal
The New South Wales Court of Appeal recently found that an adjudicator’s decision under the security of payment legislation binds a subsequent adjudicator in his/her determination and potentially the court. This case draws attention to the importance of the requirement to make comprehensive submissions in an adjudication application.
[View Casewatch PDF]

Integral Energy Australia v Kinsley
The Supreme Court of New South Wales recently examined whether the adjudicator’s decision under the security of payment legislation was invalid where the adjudicator did not consider some submissions made by the respondent in the adjudication response. This case draws attention to the importance of making comprehensive submissions in the payment schedule.
[View Casewatch PDF]

Skinner v Timms
The Supreme Court of Queensland recently examined whether the adjudicator’s decision under the security of payment legislation was void where the payment claim was served prior to the reference date, and the subsequent payment schedule was improper in its form. This case calls attention to the importance of compliance with the reference date according to the terms of contract and the security of payment legislation.
[View Casewatch PDF]

Zebicon v Remo Constructions
The New South Wales Supreme Court has recently examined whether a payment claim served by facsimile amounted to effective service in circumstances where it was not received by the respondent due to a malfunction of the respondent’s facsimile machine and found that where an electronic means of service is adopted under the Building and Construction Industry Security of Payment Act 1999, both the claimant and the respondent are responsible for its transmission, and the functionality of their equipment.
[View Casewatch PDF]

Walton Constructions (Qld) v Robert Salce
The Queensland Supreme Court has recently examined the scope of the definition of construction contract and whether a guarantee falls within the scope of the Security of Payment Act, and makes a clear distinction between the provision of a guarantee and the definition of a “construction contract” under the Construction Industry Payment Act 2004 (Qld).
[View Casewatch PDF]

Broad Construction v Vadasz
This case illustrates that where a report (or other evidence) is relied upon in an adjudication response, an adjudicator may refuse to consider the report if it was not properly included in the Payment Schedule, consequently the failure to explain the full basis of negating the payment claim can be fatal to a defence.
[View Casewatch PDF]

Shorten v David Hurst Constructions
The New South Wales Supreme Court examined the impact of the lack of proof available for the proper service of an adjudication application and applied an ancient principal that no person could profit by his own wrong. This case illustrates the need for careful review of documents prior to service and also the need to ensure that claims and application are properly served on all parties.
[View Casewatch PDF]

Katherine v The CCD Group
The NSW Supreme Court has determined that in some instances the Courts may amend a portion of a determination under the Building and Construction Industry Security of payments Act where an adjudicator has determined an amount of interest under a construction contact which the Court may construe as a penalty.
[View Casewatch PDF]

Berem v Shaya Constructions
This case illustrates that the misdescription of parties in a payment claim may invalidate an adjudication based on such a claim as no relevant construction contract exists to find jurisdiction for the Adjudicator.
[View Casewatch PDF]

Bezzina v Deemah
This case illustrates that careful submissions as to jurisdiction are necessary to avoid challenge in higher Courts and may have immediate application to contract managers and the way in which they administer contracts, in order to avoid losing claims which may otherwise succeed.
[View Casewatch PDF]

Rojo Building Pty Limited v Jillcris Pty Limited
This case illustrates that a careful election between alternative elections under the Security of Payment legislation avoids an unfortunate loss of advantage to the Claimant. This judgement may have immediate application to contract managers and the way in which they administer contracts, in order to avoid losing rights which may otherwise exist under the Security of Payments legislation.
[View Casewatch PDF]

Tsoukatos v Mustafa
This case illustrates that the Courts will examine and weigh up conflicting evidence in circumstances where service is challenged, and that each respective party must be able to sufficiently discharge their burden of proof to establish that service was either effectively carried out or not received at all. This judgement may have immediate application to parties to Security of payment disputes where personal service is not practicable and there is potential for a dispute as to the effectiveness of service.
[View Casewatch PDF]

Halkat Electrical v Holmwood Holdings
The Court of Appeal of New South Wales recently held that an Adjudicator who makes a determination as to the value of a Payment Claim on inappropriate grounds does not perform their proper function under the Act. This case provides guidance to Adjudicators and parties in all states on the preparation of claims
[View Casewatch PDF]

Cant Contracting v Casella.
The Supreme Court of Queensland recently held that contractors cannot rely on the Building and Construction Industry Payment Act 2004 to recover payment for work carried out without a licence in breach of the Queensland Building Services Authority Act 1991.
[View Casewatch PDF].

Inten Constructions v Refine.
The Supreme Court of New South Wales recently confirmed that the requirement for natural justice under the Act must be considered in light of the framework of the SOP Act, which does not give parties an unlimited opportunity to make submissions.
[View Casewatch PDF].

Queensland v Epoca Constructions.
The Supreme Court of Queensland recently confirmed that judicial review of Adjudicator’s decisions is available in Queensland, but in reviewing a decision, the Court must be satisfied that there is a clear error of law before it will set aside all or part of the determination.
[View Casewatch PDF]

Abigroup v Riverstreet.
The Supreme Court of Victoria recently confirmed its position that recovery of the claimed amount as a debt due pursuant to section 16(2)(a) of the Act is only possible where there is no real question to be tried.
[View Casewatch PDF]

JBK Engineering v Brick & Block.
The Supreme Court of New South Wales held recently that the adjudicator’s task is to resolve the issues between the parties, and found that the Adjudicator is only required to consider an application based on the arguments raised by the parties, and the reasons given by the Adjudicator demonstrated that he had considered the progress claims and whether there was a reason for not allowing the claim.
[View Casewatch PDF]

Acclaim v Loewenthal.
The New South Wales District Court recently held that if at the time of entering into the contract for residential building work it is the intention of the owner to reside in the premises and this is made clear to the contractor, then the Act will not apply to the construction contract.
[View Casewatch PDF]

Falgat v Equity (Appeal).
Given the strict timetable of the Act, parties should ensure that Payment Claims and Payment Schedules are served carefully and in accordance with the Act and other statutes to avoid later disputes. Delivering documents to a companies registered officer remains the most reliable way to ensure correct service.
[View Casewatch PDF]

Bitannia v Parkline.
The Supreme Court recently held that contractors should ensure that Payment Claims, and their service, are carefully executed and are not misleading to ensure that their rights to judgment under the Act are not affected.
[View Casewatch PDF]

Baulderstone v Queensland Investment Corp.
The Court will consider whether a document is a Payment Schedule by reference to the provisions of the Act. In doing so, the Court tends to avoid being overly technical, but care should still be taken when preparing a Payment Schedule to ensure that no doubt is left as to whether the document is a Payment Schedule under the Act and that the requirements of the Act are met.
[View Casewatch PDF]

Fifty Property v O'Mara.
The question of whether a construction contract exists between the parties to is a jurisdictional fact that is subject to review by the Courts and parties should ensure that any contract is clearly reduced to writing and executed to avoid later disputes.
[View Casewatch PDF]

Wooding v Eastoe.
The Supreme Court recently held that it is for an Adjudicator to decide who the parties to a construction contract are, and an error in determining this question will not invalidate an Adjudication Determination.
[View Casewatch PDF]

Procorp Civil Pty Ltd v Napoli Excavations and Contracting Pty Ltd & Ors.
The time for raising issues with a Payment Claim is in a Payment Schedule. Issues raised after this time may not receive consideration by an Adjudicator, much less by the courts, and do not require the Adjudicator to investigate by inviting further submissions.
[View Casewatch PDF]

Brookhollow Pty Ltd v R&R Consultants Pty Ltd & Anor
An Adjudicator should not to 'Rubber Stamp' Payment Claims, but should consider all issues raised by the parties in an Adjudication, as a failure to do so on a major issue may indicate a lack of good faith, voiding the determination.
[View Casewatch PDF]

De Martin & Gasparini v State Concrete
The Supreme Court recently confirmed that an Adjudicator who wants to decide a matter on which the parties agree on some other basis must give the parties notice and an opportunity to respond to the point, or the determination will be declared void.
[View Casewatch PDF]

Pacific General v Soliman
The NSW Supreme Court held that the absence of relevant material from Pacific does not entitle the Adjudicator to simply award the amount of the claim without addressing its merits, which as a minimum involve determining whether the construction work identified in the Payment Claim has been carried out, and what is its value. To simply rubber stamp the Claimant’s Payment Claim may result in the Adjudication Determination being held void.
[View Casewatch PDF]

Holmwood v Halkat
This case stands for the proposition that an Adjudicator must act honestly, conscientiously and not capriciously, in determining an Adjudication Application. Further, an Adjudicator’s failure to evaluate a Payment Claim in the context of a payment Schedule and the simple acceptance of only one party’s assessment may demonstrate a failure to act in good faith.
[View Casewatch PDF]

Energy Australia v Downer
This case stands for the proposition that an interlocutory Adjudication Determination may not be valid if the claims contained within the Payment Claim and Adjudication Application are of a different nature. Further, notwithstanding the issue as to validity of an Adjudication Determination, a Court may not interfere with the payment process under the Act.
[View Casewatch PDF]

Glen Eight v Home Building
This case stands for the proposition that an interlocutory injunction is likely to be granted where an Adjudicator determines an Adjudication Application in a manner which is not satisfactory or not as he/she indicated is the proper way, his decision may be open to attack.
[View Casewatch PDF]

Air Dynamics v Durham
Where an Adjudication Certificate has been filed as a judgment debt and paid, the Courts are unlikely to entertain any further action that an Adjudication Determination is void, as the purpose of the Act will be exhausted.
[View Casewatch PDF]

Energetech v Sides
This case stands for the proposition that an Adjudicator is entitled to finally determine a dispute as to whether a stage has been reached in a contract for staged payments.
[View Casewatch PDF]

Lucas v City of Sydney
This case confirms the proposition that the Act is a strict liability scheme and that cross-claims for estoppel and misleading and deceptive conduct, in the context of summary judgment, are outside the scheme of the Act and unlikely to be entertained by the Courts.
[View Casewatch PDF]

Timwin v Façade
In determining an Adjudication Application, it is wise for an Adjudicator to consider all submissions, even in the alternative, because to not do so may leave an Adjudicator open to the decision that he or she did not exercise his or her powers in good faith.
[View Casewatch PDF]

Taylor v Brick Dept
When a claimant is not insolvent, but may become insolvent due to non payment of an adjudicated amount, the Respondent will not be permitted an order of stay of execution of a judgment debt.
[View Casewatch PDF]

Taylor v Brick
A payment claim sent by facsimile, whether within or outside normal office hours on a business day, is regarded as being served on that day (NSW only – Victoria has different requirements).
[View Casewatch PDF]

Facade v Timwin
A stay to maintain a payment into court after a decision that an Adjudicator’s Determination is void, is unlikely to be granted merely by reason of the existence of a reasonable appeal.
[View Casewatch PDF]

Cooper v Veghelyi (Appeal)
This case confirms that a respondent is required to pay into the court as security the unpaid portion of an award pending the final determination of those proceedings. Further, this case highlights the interim nature of the Act and that pursuant to section 32 of the Act a respondent is entitled to an appropriate credit for the Adjudicated Amount under the Contract.
[View Casewatch PDF]

Tolfab v Tie
A short form Payment Schedule which provides a clear indication of the value of the work may be sufficient to allow a Respondent to rely on reasons in its Adjudication Response if it puts the Claimant on proper notice. Further, an Adjudicator is wise to consider submissions in the alternative where practicable.
[View Casewatch PDF]

Minister v Contrax - Appeal
Any provision in a construction contract that diminishes, displaces or delays a contractor’s entitlement to work may be void (and if void presumably void for all purposes). Provisions subject to section 34 includes those relating to the determination of reference dates and the calculation of the amount of progress payments even though the Act expressly refers to such provisions.
[View Casewtch PDF]

Falgat v Masterform
An Adjudication Determination is conclusive and res judicata is applicable as the Adjudicator is akin to a judicial tribunal but that a genuine dispute for the purposes of setting aside a statutory demand can still exist.
[View Casewtch PDF]

Reiby v Winterton
An Adjudication Determination is void if there is an apprehended bias on the part of the Adjudicator and very high standards are expected by the Court. The more concerning aspect is that a disgruntled party to a determination under the Act may have an escape mechanism and avoid the effect of a determination, in the event that the determination is unfavourable, by making a request for a different Adjudicator on the grounds of bias.
[View Casewtch PDF]

Co-ordinated v Climatech
Claims for delay damages can be the subject of Payment Claims under the Act, if provided for by the terms of the particular Contract between the parties but care still should be exercised when preparing the Payment Claim.
[View Casewtch PDF]

Schokman v Xception
To apply to adjudication when the Respondent fails to provide a payment schedule, the Claimant must comply strictly with the statutory timeframe.
[View Casewtch PDF]

Coordinated Constructions Co v J M Hargreaves & Ors
An Adjudicators Determination is not void if it includes an incorrect amount in the Adjudicated Amount [View Casewtch PDF] TQM v Dasein Care should be taken to ensure the Adjudication Application is actually received.
[View Casewtch PDF]

Review of the BCISOP Act 2004
Review of the Act in NSW - for amendments due in 2005.
[View Casewatch PDF]

Estate Property Holdings v Barclay Mowlem Construction
Some work included in a payment claim must have been performed in the last 12 months.
[View Casewatch PDF]

Brodyn v Davenport (Appeal)
Judicial review is not available to parties seeking relief from an erroneous decision by an Adjudicator, except in very limited circumstances.
[View Casewatch PDF]

Digital v QX Australia
An interlocutory injunction may be granted where there is a dispute to the validity or service of a payment claim.
[View Casewatch PDF]

Holdmark Developers v GJ Formwork
Only one final payment claim can be made at (or within 12 months of) the termination of the contract or cessation of works.
[View Casewatch PDF]

Minister for Commerce v Contrax Plumbing & Ors
A provision in a contract that delays or diminishes a contractors entitlement to payment under the Act will be void.
[View Casewatch PDF]

Barclay Mowlem v Tesrol Walsh Bay
To 'provide' a payment schedule means the process of delivery must be initiated rather then actual receipt by the Claimant.
[View Casewatch PDF]

Isis Projects v Clarence Street
The sufficiency of a payment claim depends on the conduct of the parties and the history of the contract. The Court appears to be adopting a liberal approach.
[View Casewatch PDF]

Hawkins Construction v Macs Industrial Pipework
The Act applies to subcontracts entered into after the commencement date.
[View Casewatch PDF]

Baulderstone Hornibrook Pty Ltd v HBO DC Pty Ltd.
Summary judgement provisions - various states.
[View Casewatch PDF]

Bourke Road Pty Ltd v Boxster Constructions Pty Ltd
A creditors statutory demand for a debt due must not be submitted before the expiry of the prescribed time for payment.
[View Casewatch PDF]

John Holland v Cardno MBK
The Adjudication Application should not contain a new contractual basis or new supporting documentation that was not included in the Payment Claim.
[View Casewatch PDF]

Transgrid v Walter Construction Group 2004
The Adjudicator is not bound by the Superintendents Certification.
[View Casewatch PDF]

Kembla Coal Coke v Select Civil & Ors
A claim for preparation costs, extension of time, delay and/or disruption costs may be included in a payment claim.
[View Casewatch PDF]

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