Security of Payment
July 14, 2017 12:37 PM | Posted by Mitch Francis and Rebecca Clafton |
After nearly three years of reviews and consultation with the construction industry, last week the Building and Construction Industry Security of Payment (Review) Amendment Bill 2017 (SA) was tabled in the Parliament of South Australia. The Bill proposes amendments to the Building and Construction Industry Security of Payment Act 2009 (SA) aimed at increasing transparency of the Act, and thereby its use within the industry. [read more]
June 5, 2017 12:54 PM | Posted by Lisa Papanicolaou, Sarah Swan & Mitchell Francis |
The High Court has granted special leave and the appeal will consider matters including whether an adjudication determination under the Building and Construction Industry Security of Payment Act 2009 (SA) can be judicially reviewed for a non-jurisdictional error of law. [read more]
May 19, 2017 10:27 AM | Posted by Tom Kearney and Tom O'Bryan |
The court in Promax Building Developments Pty Ltd v PCarol & Co Pty Ltd [2017] VCC 495 focused on the purpose of the building owner and its activities when deciding whether a 'building owner is in the business of building residences' for the purposes of section 7(2)(b) of the Building and Construction Industry Security of Payment Act 2002 (Vic); it did not depend on the scale of the business, the success of the business, the number of projects undertaken either in the past or at any one time, or as contemplated for the future.
[read more]
April 19, 2017 2:53 PM | Posted by Richard Crawford and Steph Skevington |
This case affirms the High Court's decision in Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 53 (analysed in our Roundup of 2016 security of payment cases) and illustrates some of the difficulties that may arise in practice in applying the outcome of the Southern Han decision. [read more]
March 20, 2017 11:36 AM | Posted by Tom Kearney and Alyssa Dixon |
Money paid into a designated trust account under the section 28B(6) of the Building and Construction Industry Security of Payments Act 2002 (Vic) may be used 'to satisfy the claimant's entitlements' under section 28F(2) of that Act, even when there is no valid review of an adjudication determination under section 28B.  [read more]
March 14, 2017 12:20 PM | Posted by Rebecca Clafton and Riana Cermak |

The Full Court of the Supreme Court of South Australia has followed Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379 in deciding that the Building and Construction Industry Security of Payment Act 2009 (SA)  impliedly excludes certiorari on the ground of error of law on the face of the record. This case also confirms that a contract is not void merely by reason of a contractor's failure to disclose his or her bankruptcy in the course of business carried on under another name in breach of the Bankruptcy Act 1966 (Cth), and such circumstances will not lead to an adjudicator lacking jurisdiction under the SA security of payment Act.

The decisions in the Maxcon litigation are a reminder that head contractors should properly investigate the financial standing of subcontractors prior to contract.

[read more]
February 14, 2017 4:18 PM | Posted by Richard Crawford |
Our comprehensive review of the key security of payment cases in 2016 from around Australia is now available. [read more]
January 23, 2017 3:51 PM | Posted by Petrina Macpherson and Alexandria Hammerton |
A reminder that a company in liquidation cannot use the Building and Construction Industry Payments Act 2004 (Qld) and a warning to liquidators not to act unreasonably in pursuing an application.  [read more]
December 21, 2016 12:57 PM | Posted by Richard Crawford and Michelle Knight |
The High Court confirms that the existence of a reference date is a precondition to the making of a valid payment claim under the NSW security of payment legislation.  [read more]
December 14, 2016 2:22 PM | Posted by Richard Crawford |
Consult our guide to security of payment time limits for the relevant information necessary to protect your organisation to act in respect of any claim lodged under the security of payment framework over the year-end period.  [read more]
December 14, 2016 11:24 AM | Posted by Emma Cavanagh |
The Construction Contracts Amendment Bill 2016 was passed by Parliament on 22 November 2016 and will, for the most part, take effect from tomorrow, 15 December 2016. [read more]
December 2, 2016 4:06 PM | Posted by Michael Creedon |
In December 2015, the Department of Housing and Public Works issued its Security of Payment Discussion Paper. This discussion paper built on the information received in response to the earlier 2014 Queensland Building and Construction Commission Better Payment Outcomes Discussion Paper, which was focused on exploring ways of delivering better payment outcomes for subcontractors.  [read more]
November 30, 2016 9:52 AM | Posted by Andrew Orford and Sarah Cahill |
This decision highlights the difference between a failure to consider a relevant contractual provision (which may constitute jurisdictional error) and an adjudicator's decision not to consider a time bar because of the operation of section 24(4) of the Building and Construction Industry Payments Act 2004 (Qld), which if erroneous would constitute an error within jurisdiction. [read more]
October 27, 2016 3:42 PM | Posted by Andrew Orford and Tom Ward |
The Supreme Court of Queensland has declared an adjudication determination made under the Building and Construction Industry Payments Act 2004 (Qld) void on the basis that the adjudicator decided the dispute on a basis for which neither party contended.  [read more]
October 18, 2016 8:50 AM | Posted by Peter Wood & Chris Hey |
The case makes it clear that a person who is in liquidation has no entitlement under part 3 of the SOP Act to compel payment of a payment claim. The case also clarifies that a payment schedule must have sufficient information to enable the claimant to understand why the claim has been rejected.
[read more]
October 12, 2016 2:35 PM | Posted by Annabelle Healey and Tom Kearney |
An attempt to avoid paying the full amount awarded under an adjudication application by offering partial payment by cheque and stating that depositing of the cheque will constitute acceptance of a settlement offer will be insufficient to indicate that an agreement had been reached that the payment of was to extinguish the adjudicated debt. [read more]
September 22, 2016 8:58 AM | Posted by Lisa Papanicolaou |
The risk that a subcontractor might not be able to refund moneys paid as progress payments under the Building and Construction Industry Security of Payment Act 2009 (SA) that are ultimately found to be due to the head contractor after a successful action by the head contractor is a risk which Parliament has assigned to a head contractor.  The case is also a reminder of the danger of entering into a contract with an undischarged bankrupt. [read more]
September 16, 2016 12:21 PM | Posted by Michelle Knight and Richard Crawford |
A court may prevent enforcement of an adjudication determination where it established that the beneficiary of that determination is insolvent or at risk of going insolvent. [read more]
September 8, 2016 10:04 AM | Posted by Amy Ryan |
As a result of Professor Evans' statutory review of the Construction Contracts Act 2004 (WA) the Western Australian State Government is likely to introduce reforms. [read more]
August 30, 2016 7:25 PM | Posted by Amy Ryan |
The Western Australian Government has announced that it is set to introduce new measures to protect subcontractors working on State Government funded projects. [read more]
July 29, 2016 11:33 AM | Posted by Tim Drok |
Despite non-compliance with time limits being a ground on which an application for adjudication of a payment dispute must be dismissed under the Construction Contracts Act 2004 (WA), an adjudicator has found he had jurisdiction to hear such an application made out of time. [read more]
July 18, 2016 11:18 AM | Posted by Imogen Bailey |
A payment claim served by a head contractor without a supporting statement will not be validly served under the Building and Construction Security of Payment Act 1999 (NSW), and the respondent will therefore not be liable to pay the claimed amount even if the respondent does not provide a payment schedule.  [read more]
July 13, 2016 12:10 PM | Posted by Sandy Godfrey |
If you have sought adjudication of an invalid payment claim then you will be liable for the costs of the application as well as the fees of the authorised nominating authority and the adjudicator.  [read more]
June 23, 2016 10:26 AM | Posted by Justin Sadikoen |
The court will impose a high threshold on an applicant for summary judgment in debt proceedings resulting from a failure to pay on a payment claim under security of payment legislation. [read more]
June 20, 2016 10:22 AM | Posted by Jennifer McVeigh and Anne Crittall |
Confirmation that an adjudicator's failure to include reasons for the decision will amount to jurisdictional error and invalidate that portion of the decision.  [read more]
June 17, 2016 11:07 AM | Posted by Peter Wood |
On Wednesday the Supreme Court of New South Wales handed down its decision in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2016] NSWSC 770 which confirmed the availability of a further ground of challenge for aggrieved parties to seek quashing of adverse adjudication determinations. [read more]
May 27, 2016 1:47 PM | Posted by Peter Wood |
In November last year, the Victorian Supreme Court handed down a judgment which held that mediation was not 'a method for resolving disputes' for the purposes of section 10A(3)(d)(ii) of the Building and Construction Industry Security of Payment Act 2002 (Vic), so as to exclude disputed variation claims from being claimed and adjudicated under the Victorian Security of Payment Act (see my earlier alert here). [read more]
May 27, 2016 12:53 PM | Posted by Cal Doran |
The Supreme Court of Western Australia confirms that an adjudicator appointed under the Construction Contracts Act 2004 (WA) must make their determination within time and must give rational reasons for their determination. [read more]
May 25, 2016 10:22 AM | Posted by Andrew Orford |
Queensland Supreme Court granted an injunction preventing a contractor from pursuing part of its adjudication application under the Building and Construction Industry Payments Act 2004 (Qld), on grounds of 'Anshun' estoppel. [read more]
April 20, 2016 12:41 PM | Posted by Tara Moffat |
The WA courts have confirmed the interim nature of adjudication determinations do not displace the contractual rights to enforce security. [read more]
March 17, 2016 3:19 PM | Posted by Peter Wood |
On 11 March 2016, the Supreme Court of Victoria handed down its decision in Krongold Constructions (Aust) v SR & RS Wales [2016] VSC 94 which places a significant onus on adjudicators under the Building and Construction Industry Security of Payment Act 2002 (Vic) Act in Victoria and possibly in other states to demonstrate the valuation process adopted and to ensure that that process aligns with the requirements of the Act [read more]
March 2, 2016 11:29 AM | Posted by Claire, Falk |
We have received some great feedback from attendees at our recent seminar in Melbourne where we discussed the likely issues in the Victoria Construction Industry for the year ahead. The seminar was presented by partners, Peter Wood, Phillip Greenham and Karl Blake. Click here to view a summary of what was discussed at the seminar. [read more]
February 12, 2016 12:00 PM | Posted by Richard Crawford |
The new edition of our comprehensive review of 2015 security of payment cases from around Australia is now available [read more]
January 29, 2016 11:21 AM | Posted by Peter Wood |
On 13 January 2016, the Supreme Court of Victoria handed down its decision in Milburn Lake Pty Ltd v Andritz Pty Ltd [2016] VSC 3 which confirms significant impediments to the enforcement of adjudication determinations made under the Building and Construction Industry Security of Payment Act 2002 (Vic) in Victoria. [read more]
January 20, 2016 2:19 PM | Posted by Jennifer McVeigh and Ellen Bevan |
The mere fact that the adjudicated amount for a progress payment exceeds the amount certified by the superintendent for that progress payment will not be sufficient to mount a successful claim for restitution of an adjudicated amount. [read more]
December 16, 2015 5:38 PM | Posted by Richard Crawford |
Download our useful guide to preparing for security of payment claims served during the holiday period. [read more]
December 7, 2015 2:22 PM | Posted by Andrew Orford and Laura MacLeod |
December 2, 2015 2:41 PM | Posted by Andrew Orford and Luke Trimarchi |
The respondent to an adjudication decision under the Building and Construction Industry Payments Act 2004 (Qld) should not bear the risk that monies paid over may not be refunded where there is a prima face case a decision is void for jurisdictional error. [read more]
November 25, 2015 11:03 AM | Posted by Soo-Kheng Chia |
November 23, 2015 10:02 AM | Posted by Peter Wood |
On 13 November, the Supreme Court of Victoria handed down its decision in SSC Plenty Road v Construction Engineering (Aust) [2015] VSC 631 which will have significant repercussions in respect of Security of Payment Act claims and the drafting of dispute resolution clauses in construction contracts. [read more]
November 18, 2015 2:25 PM | Posted by Stephen Lewis and Melissa Davies |
Whether a builder is entitled to payment according to certificates issued for work done even though the other party has rights of set-off or remediation will depend on the construction of the contract. [read more]
November 4, 2015 2:46 PM | Posted by Simon Moses |
The existence of a reference date to support a payment claim is not a jurisdictional fact capable of appeal as it is not an essential pre-condition for the making of a valid payment claim. [read more]
September 3, 2015 1:28 PM | Posted by Vanessa Stokell |
Read our analysis of the Qld Supreme Court decision in JAG Projects Qld Pty Ltd v Total Cool Pty Ltd & Anor [2015] QSC 229.   [read more]
September 2, 2015 3:05 PM | Posted by Andrew Orford and Vanessa Stokell |
Read our analysis of the Qld Supreme Court decision in BRB Modular Pty Ltd v AWX Constructions Pty Ltd & Ors [2015] QSC 218. [read more]
August 31, 2015 9:58 AM | Posted by David Pearce and Vanessa Stokell |
Read our analysis of the Qld Supreme Court decision in Camporeale Holdings Pty Ltd v Mortimer Construction Pty Ltd & Anor [2015] QSC 211. [read more]
August 28, 2015 10:39 AM | Posted by Soo-Kheng Chia |
Download this edition of Construction Law Update for developments in New South Wales, Queensland and Victoria. [read more]
August 21, 2015 11:36 AM | Posted by Allie Ford |
The right to litigate a restitutionary claim for amounts paid under BCIPA is not suspended until completion of construction contract. [read more]
July 13, 2015 2:11 PM | Posted by Jennifer McVeigh and Vanessa Stokell |
Read our analysis of the Qld Supreme Court decision in Sunshine Coast Regional Council v Earthpro Pty Ltd & Ors [2015] QSC 168 [read more]
July 1, 2015 10:02 AM | Posted by Christian Camilleri |
Courts have the power to review adjudication determinations under the Victorian Security of Payment legislation where jurisdictional error exists.  A privative provision will not override the court's inherent power as a supervisory body. [read more]
June 29, 2015 11:11 AM | Posted by Soo-Kheng Chia |
June 2015 saw legislative changes in Queensland, court decisions on indemnity costs and security of payment and examples of VCAT decisions.  Download the omnibus of these developments [read more]
June 24, 2015 2:08 PM | Posted by MIchael Creedon and Vanessa Stokell |
Amending Regulation in line with the third stage of the Ten Point Action Plan [read more]
June 24, 2015 9:55 AM | Posted by Megan Coffey |
Read our analysis of The New South Wales Netball Association Ltd v Probuild Constructions (Aust) Pty Ltd [2015] NSWSC 408 [read more]
June 3, 2015 12:28 PM | Posted by Hugo Wilesmith |
Read our analysis of Reitsma Constructions Pty Ltd v Davies Engineering Pty Ltd t/as In City Steel [2015] NSWSC 343.   [read more]
May 29, 2015 9:23 AM | Posted by Soo-Kheng Chia |
In May 2015 the security of payment legislation in NSW changed and there were a plethora of interesting decisions in Victoria. Download the omnibus of these developments. [read more]
May 18, 2015 10:24 AM | Posted by Chris Hey |
Claimant who is in liquidation cannot obtain judgment under Vic SoP Act where respondent intends to file counter-claim or defence [read more]
May 9, 2015 10:24 AM | Posted by Caleb Gittins |
Read our analysis of Southern Han Breakfast Point Pty Limited v Lewence Construction Pty Limited [2015] NSWSC 502. [read more]
May 1, 2015 3:02 PM | Posted by Richard Crawford |
The Building and Construction Industry Security of Payment Regulation 2008 (NSW) introduced statutory regulation of certain retention monies and commences today. (1 May 2015) [read more]
May 1, 2015 11:27 AM | Posted by Kate Rodrigues |
The WA Supreme Court has clarified the nature of decisions of the State Administrative Tribunal in an appeal of a decision summarised in our 2014 Security of Payment Roundup (Field Deployment Solutions Pty Ltd and SC Projects Australia Pty Ltd)  [read more]
March 31, 2015 11:03 AM | Posted by Richard Crawford |
The new edition of our comprehensive review of 2014 SoP cases from around Australia is now available [read more]
March 30, 2015 12:10 PM | Posted by Soo-Kheng Chia |
In March 2015 an appeal to a 2014 WA security of payment case was heard among other court decisions in NSW, Vic, Queensland and WA. Download the omnibus of these developments. [read more]
March 27, 2015 10:22 AM | Posted by Claire Tait and Hugo Wilesmith |
In Nazero Group Pty Limited v Top Quality Construction Pty Limited [2014] NSWSC 232, this occurred even though judgment had not yet been entered. [read more]
March 25, 2015 11:09 AM | Posted by Caleb Gibbins |
Read our analysis of Lamio Masonry Services Pty Ltd v TP Projects Pty Ltd [2015] NSWSC 127. [read more]
February 26, 2015 11:13 AM | Posted by Kate Rodrigues |
Read our analysis of Hamersley HMS Pty Ltd v Davis [2015] WASC 14 [read more]
February 24, 2015 3:58 PM | Posted by Kate Rodrigues |
Read our analysis of GRC Group Pty Ltd v Kestell [2015] WASAT 11 [read more]
February 20, 2015 11:50 AM | Posted by Soo-Kheng Chia |
Download our latest summary of developments in the law and recent cases [read more]
December 15, 2014 5:25 PM | Posted by Richard Crawford |
Download our useful guide to preparing for security of payment claims served during the holiday period [read more]
December 12, 2014 5:10 PM | Posted by Julie Whitehead |
A new definition of 'business day' will apply to all payment claims, which means that in many circumstances, time will not run over the Christmas period   [read more]
December 3, 2014 4:57 PM | Posted by Soo-Kheng Chia |
Download our latest summary of developments in the law and recent cases [read more]
November 12, 2014 12:07 PM | Posted by Richard Crawford |
Courts may consider attempts in a subsequent adjudication to improve the quality of evidence submitted in a prior adjudication an abuse of the NSW SOP Act. [read more]
November 3, 2014 7:07 PM | Posted by Soo-Kheng Chia |
Download our latest summary of developments in the law and recent cases [read more]
September 30, 2014 3:18 PM | Posted by Soo-Kheng Chia |
Download our latest summary of developments in the law and recent cases [read more]
July 25, 2014 2:59 PM | Posted by Soo-Kheng Chia |
Download our latest summary of developments in the law and recent cases [read more]
June 30, 2014 11:07 AM | Posted by Soo-Kheng Chia |
Download our latest summary of developments in the law and recent cases [read more]
June 11, 2014 4:00 PM | Posted by Steven Yip |
After a decade of debate Hong Kong is finally about to get its own security of payment laws [read more]
May 22, 2014 11:25 AM | Posted by Soo-Kheng Chia |
Download our latest summary of developments in the law and recent cases [read more]
April 11, 2014 4:24 PM | Posted by Richard Crawford |
Construction contracts entered into from 21 April 2014 (other than certain residential building work) will be subject to the SOPA Amendments [read more]
April 11, 2014 10:03 AM | Posted by Soo-Kheng Chia |
Download our latest summary of developments in the law and recent cases [read more]
April 10, 2014 4:07 PM | Posted by Michael Creedon |
Amendments to Queensland's Building and Construction Industry Payments Act are intended to reduce red tape and to restore equity to a system [read more]
March 12, 2014 5:10 PM | Posted by Soo-Kheng Chia |
Download our summary of developments in the law and recent cases [read more]
February 11, 2014 2:54 PM | Posted by Richard Crawford |
The new edition of our comprehensive review of SoP cases from around Australia is now available [read more]