Several recent Court decisions in New South Wales will have far
reaching consequences for the 'security of payment'
legislation in existence around Australia. This legislation
provides a special statutory mechanism whereby a Claimant in the
building and construction industry may make a payment claim and, if
necessary, apply for a determination seeking payment of that
Overview of the recent decisions
While the security of payment legislation is generally seen as
'pro-Claimant', the recent decisions tend to give greater
scope to a Respondent to resist a payment claim under the Act.
In summary, the cases provide that a Claimant may have only
'one shot' at adjudication in relation to an entitlement to
a progress payment.
The cases are:
Dualcorp Pty Ltd v Remo Constructions Pty Ltd 
NSWCA 69. In this case, the Owner was able to defeat an application
for summary judgment on the basis that the invoices served by the
Contractor had been previously determined by an adjudicator. The
Owner was successful, despite not serving a payment schedule on the
Contractor in accordance with the legislation.
Perform (NSW) Pty Ltd v Mev-Aust Pty Ltd t/as Novatec
Construction Systems  NSWSC 416 and The University
of Sydney v Cadence Australia Pty Limited & Anor  NSWSC
635. These cases followedDualcorp and, arguably,
went one step further. In these cases, the Court allowed the
Respondent to obtain an injunction against the Claimants
restraining them from proceeding to adjudication of the payment
claims. The injunctions were granted on the basis that the payment
claims (or a large part of the payment claims) had previously been
determined by an Adjudicator and were not entitled to be
Principles established by the decisions
Some of the key principles to arise from the cases are as
The determination of an entitlement to a progress payment made
by an adjudicator is final, and cannot be re-agitated in a
subsequent adjudication. A Claimant essentially has one shot at an
adjudication under the security of payment legislation for each
particular progress claim; see Dualcorp Pty Ltd v Remo
Constructions Pty Ltd  NSWCA 69;
A Respondent may be able to obtain an injunction restraining a
Claimant from proceeding to adjudication of the Claimant's
payment claim under the security of payment legislation, where the
determination of an entitlement to a progress payment has been
determined in a previous adjudication; see Perform
(NSW) Pty Ltd v Mev-Aust Pty Ltd t/as Novatec Construction Systems
 NSWSC 416;
A Claimant seeking to have the same claim re-determined by an
adjudicator may be considered to have engaged in an "abuse of
process" and a Respondent may be able to obtain an injunction
restraining the Claimant from proceeding to adjudication of that
claim; see The University of Sydney v Cadence Australia
Pty Limited & Anor  NSWSC 635.
A dissatisfied Claimant is not entitled to engage in
"Adjudicator shopping." The Courts have held that a
decision of an adjudicator in relation to the Claimant's
entitlement (or non-entitlement) to a progress payment, effectively
cannot be "re-agitated" in a subsequent payment claim. As
a result, a Claimant is not entitled to re-submit an identical (or
similar) payment claim for adjudication which has been previously
determined by an adjudicator.
However, this does not affect the parties ability to make a
substantive claim in relation to their entitlements under the
Implications for the sector
Following these cases, the outcomes for Principal's and
Contractor's areas follows:
For Principals - A Principal may be able to
prevent a payment claim from proceeding to adjudication where a
Claimant seeks to have a second attempt at pursuing a claim that
has been previously determined by an adjudicator.
For Contractors - Contractors should ensure
that payment claims and adjudication applications are properly
prepared and supported as it is likely that a Contractor will only
get one shot at a particular claim at adjudication.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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