1559 High Street Pty Ltd v Camillo Builders Pty Ltd [2026] VSCA 129

What the court decided

The principal, 1559 High Street Pty Ltd (1559 High Street), engaged Camillo Builders Pty Ltd (Camillo) to design and build apartments and terrace homes in Glen Iris [1]. In the adjudication of Camillo's payment claim under the Building and Construction Industry Security of Payment Act 2002 (Vic) (the Act), 1559 High Street alleged that Camillo had engaged in misleading or deceptive conduct contrary to section 18 of the Australian Consumer Law, in schedule 2 of the Competition and Consumer Act 2010 (Cth) [2]. It alleged that this conduct caused all, or the vast bulk, of the amount claimed [2]. The adjudicator did not consider the merits of the consumer law claims, but accepted that they were "genuinely in controversy" [19].

The adjudicator corrected a typographical error in the determination, which increased the adjudicated amount [3]. A judge of the County Court then entered judgment on the papers for the amount in the adjudication certificate [4]. 1559 High Street applied to the Supreme Court to set aside the corrected determination and the judgment, arguing that provisions of the Act were inconsistent with the Australian Consumer Law, contrary to section 109 of the Constitution [5]. The trial judge dismissed 1559 High Street's proceeding, with costs [22].

The trial judge found that section 28R(5)(a)(ii) of the Act barred 1559 High Street from raising its consumer law defence in seeking to have the judgment set aside, and that finding was not challenged [6]. Nor was the finding that the adjudication provisions are consistent with the Australian Consumer Law [7], [8]. The Court of Appeal (McLeish, Kennedy and Kaye JJA, in joint reasons) granted leave on the inconsistency grounds, refused leave on the other grounds and dismissed the appeal [148].

On inconsistency, the Court agreed with Keane CJ in Birdon Pty Ltd v Houben Marine Pty Ltd (2011) 197 FCR 25; [2011] FCAFC 126 ('Birdon') that the Act creates a new statutory right to receive a provisional payment of an adjudicated amount [118]. That right does not depend on the parties' rights under the building contract and is not affected by rights under the Australian Consumer Law [118]. Taking a provisional payment into account later does not impair a court in giving judgment on the parties' substantive rights under that law [119]. The Court preferred the majority in Birdon to the contrary views of Basten JA in Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9; [2006] NSWCA 238 ('Bitannia') and Rares J in Birdon [112].

Because of the unchallenged finding under section 28R(5)(a)(ii), the alleged misleading conduct was, in the sense used by Hodgson JA in Bitannia, "not relevant" to the statutory entitlement [110]. The case therefore fell within the category Hodgson JA identified, where the conduct alleged is relevant only to the parties' final entitlements [111].

Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd (2016) 337 ALR 452; [2016] VSCA 247 did not assist, because in that case section 553C of the Corporations Act 2001 (Cth) had replaced the competing claims with a single net balance on liquidation [109]. Relying on Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34, the Court gave weight to section 131C of the Competition and Consumer Act, which provides that the Australian Consumer Law is not intended to address the parties' rights exhaustively [122]. On that basis, and paraphrasing Gummow J in Momcilovic, the Court considered the Australian Consumer Law more likely "to be construed as intended to operate concurrently with" the Act [122]. This was so although the parties had not addressed substantive submissions to section 131C [114].

If the process might in practice prevent a consumer law claim from being run, "the court retains its wide powers to order a stay of execution" [123]. That power extends to, but is not limited to, cases of irreparable harm that would render other rights nugatory, though a judge may weigh the Act's policy that progress payments be made [123]. The separate rights under sections 28M, 28O and 28R of the Act do not alter, impair or detract from the operation of the Australian Consumer Law [124].

In refusing leave on the other grounds, the Court said the time for payment under section 28M(2)(a) runs from the date the original determination was given under section 23A, not the date on which a corrected determination was given under section 24(3) [139]. The Court accepted that little time may pass between a corrected determination and judgment, but said, quoting earlier authority, that "extremely abbreviated time frames" are a feature of the Act and cannot justify a construction the words do not allow [142]. On procedural fairness, the consumer law claims could not affect Camillo's right to enter judgment, so there was no realistic possibility of a different outcome [147].

Why it matters

Where a principal's claim of misleading conduct goes only to final entitlements and the Act bars it as a defence (as the trial judge found here, without challenge on appeal), it cannot be used to resist judgment on an adjudication certificate [110], [111], [147]. The statutory right to a provisional payment is "separate and distinct" from rights under the Australian Consumer Law [119]. The court's power to stay execution also remains [123]. The Court applied Authorised Version No 13 of the Act, incorporating amendments as at 1 February 2024, so readers should check the current text (footnote 10 of the judgment).

Numbers in square brackets are paragraph numbers of the judgment. This note summarises a decided case for education and is not legal advice. See how the notes are written.