Australia: A Closer Look At The Victorian Security Of Payment Legislation

Last Updated: 3 October 2009
Article by Lee Carroll

Key Points:
The Court determined when an adjudication application procedure will be valid, and when it can be challenged.

In the recent case of Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd [2009] VSC 156, the Supreme Court of Victoria considered the Victorian security of payment legislation (the Building and Construction Industry Security of Payment Act 2002. The decision represents only the sixth time in its seven-year history that the Victorian Act has been considered by the Court. The decision provides an insight into the extent to which the interpretation by the New South Wales courts of the NSW security of payment legislation is being followed in Victoria.

Justice Vickery, who is the head of the Building Cases List in the Victorian Supreme Court, considered two important issues:

  • first, when will an adjudication application procedure be valid; and
  • secondly, the bases on which an adjudication can be challenged.

Justice Vickery also gave a useful overview of the Act, its purpose and its operation.

A valid adjudication application

The case relates to a major subcontract for the TAC headquarters in Geelong. FKP Lifestyle Pty Ltd engaged Hickory Developments Pty Ltd as the main contractor to design and construct the base building works and fit out the property. Hickory engaged Schiavello (Vic) Pty Ltd to carry out these works.

On 3 February 2009, Hickory received a payment claim from Schiavello for an amount of over $2 million. Hickory denied liability to pay the payment claim and on 9 February 2009 served on Schiavello a payment schedule stating that the amount payable to Schiavello was $Nil.

Schiavello referred the dispute over the payment claim to Adjudicate Today, an authorised nominating authority under the Act, for determination under section 18(1)(a)(i) of the Act (where the scheduled amount is less than the claimed amount). At 4:01 pm on 23 February 2009, Schiavello's in-house lawyer sent, by email, a copy of the completed adjudication application and submissions to Adjudicate Today. Later the same day supporting documents referred to in the submissions were sent at 9.50 pm and 9.59 pm. Hickory received all documents by courier on 24 February 2009.

Within the prescribed time

Hickory submitted that the adjudication application was not commenced within the time prescribed by the Act and therefore, was not valid.

Under section 18(3)(c) of the Act, the adjudication application was required to be made within 10 business days after Schiavello received the payment schedule. Accordingly, 23 February 2009 was the tenth and final day within which Schiavello could make its application. The question was whether the sending of the emails late in the day on 23 February 2009 constituted the making of an adjudication application on that day.

Applications sent by email

Not unsurprisingly, it was held that an adjudication application can be commenced by the filing of the appropriate documents electronically. The Court rejected Hickory's submission that actual physical receipt within the 10 business day period was a basic requirement of the Act. The Court found that an adjudication application lodged by email is made at the time when it arrives at the recipient's server. This is notwithstanding the server may be located at a place different from the premises from which the recipient conducts its business.

Accordingly, the Court found that Schiavello's adjudication application was made to Adjudicate Today within the 10 business day time period prescribed by the Act and Hickory's claim was dismissed by the Court.

Bases on which to challenge an adjudication

In considering challenges to the determination of an adjudicator, Justice Vickery accepted and applied the approach taken in the NSW case of Brodyn Pty Ltd t/as Time Cost and Quality v Davenport: the determination of an adjudicator is void if the "basic requirements" of the Act are not complied with. That is, the requirements which were intended by the legislature to be essential pre-conditions for the existence of an adjudicator's determination. Brodyn has become entrenched in NSW as describing the key criteria for deciding whether a determination can be challenged. Those "basic and essential requirements of the Act" include:

  • the existence of a construction contract between the claimant and the respondent to which the Act applies;
  • the service by the claimant on the respondent of a payment claim;
  • the making of an adjudication application by the claimant to an authorised nominating authority;
  • the reference of the application to an eligible adjudicator who accepts the application;
  • the determination by the adjudicator of the application, by determining the amount of the progress payment, the date on which it becomes or became due and the rate of interest payable and the issue of a determination in writing.

What relief is available when an adjudicator's determination is void?

Justice Vickery parts company with the NSW Court in Brodyn on the issue of what relief is available if an adjudicator's determination is found to be void. In Brodyn, the Court held that the writ of certiorari, which operates to quash the legal effect or the legal consequences of the decision or order under review, is not available to quash an adjudicator's determination. Despite desiring consistency in the regimes for payment under construction contracts in both NSW and Victoria, Justice Vickery said that certiorari is available to quash an adjudication determination under the Victorian Act.

Justice Vickery has however subsequently reconsidered this view. In Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture, which involved an application for an interlocutory (interim) injunction seeking to restrain the defendant from taking action to challenge an adjudicator's decision, Justice Vickery said that "it may well be that my determination in Hickory was incorrect". The issue has yet to be heard and is listed for trial. It may be that there will be consistency in interpretation after all.

Minimal technical challenges

The Court also made some interesting general comments discouraging excessively technical objections under the Act. It was not the intention of the Act that precise compliance with all of the more detailed requirements of the Act is essential to the existence of a valid adjudication. The legislative intention in the Act is that adjudications should be made and given effect to with minimum delay and should be approached with minimal technicality and court involvement.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.