Security of payment

In 2020 the New South Wales Court of Appeal held, under the Building and Construction Industry Security of Payment Act 1999 (NSW), that a contractor's statutory entitlement to a progress payment, which arose on a reference date before the principal took the work out of the contractor's hands, was not extinguished by that take-out. It also held that an adjudicator who expressly declined to determine the amount of the progress payment had committed jurisdictional error and that the contractor did not have to obtain a court declaration that the first determination was void before it applied for a second adjudication.

Court of Appeal, Supreme Court of New South Wales, 11 August 2020

Under the New South Wales security of payment Act as it then stood, a valid payment claim had to be supported by a reference date; on the contract in this case, none arose once the remaining work was taken out of the contractor's hands (suspending payment) or, alternatively, once the contract was terminated.

High Court of Australia, 21 December 2016

Under the Victorian security of payment Act, the Court of Appeal held that the fixing of the reference date for a final payment claim under section 9(2)(d) is a jurisdictional fact reviewable on judicial review, and dismissed a claimant's appeal from a decision that his payment claim was out of time and the adjudication determination of no legal effect.

Court of Appeal, Supreme Court of Victoria, 27 November 2015

In 2009 the New South Wales Court of Appeal held that, under the State's security of payment Act as it then stood, a claimant could not obtain judgment on a later payment claim for amounts that an adjudicator determined on an earlier claim. Macfarlan JA, with whom Handley AJA agreed, held that issue estoppel applied to the issues the adjudicator decided; Allsop P decided the case under section 13(5) and left the estoppel question open.

Court of Appeal, Supreme Court of New South Wales, 15 April 2009

In 2006 the New South Wales Court of Appeal held that section 109X of the Corporations Act 2001 (Cth) applied to the provision of a payment schedule to a company under the State's security of payment Act as it then stood, so a schedule left at the claimant's registered office during office hours was provided when it was left. On a point Equity did not contest and which did not affect the result, the Court also said that, under the Act as it then stood, the primary judge was wrong to find that section 13 barred a further payment claim for the same amount within the twelve-month limit.

Court of Appeal, Supreme Court of New South Wales, 19 September 2006

In the Equity Division of the Supreme Court of New South Wales, McDougall J dismissed a summons to quash an adjudicator's determination under the New South Wales security of payment Act as amended, holding that the existence of a reference date was not a jurisdictional fact and that contractual preparation costs and delay costs could form part of a progress payment calculated under the contract, and that although allowing compound interest (if the adjudicator did) exceeded jurisdiction, relief should be refused in discretion [26], [39], [42], [43], [106], [121], [122], [136], [137], [138].

Supreme Court of New South Wales, 23 July 2004

In the Equity Division of the Supreme Court of New South Wales, Einstein J held that a builder should have summary judgment on a payment claim under the Building and Construction Industry Security of Payment Act (NSW) as it then stood, because the claim was valid despite including old rock excavation work and delay costs and the superintendent's certificate was not a payment schedule [102], [104], [106], [112]. His Honour also held that the principal's separate proceedings should be summarily dismissed, among other reasons as an abuse of process [108].

Supreme Court of New South Wales, 3 December 2003

In 2002 the New South Wales Court of Appeal refused a main contractor leave to appeal from a judgment for its subcontractor on a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW), as the Act then stood. Heydon JA, with whom Ipp AJA agreed, held that a payment claim could be served even though it related to work done in periods before the month of service, and rejected an argument that it had to be served at least ten business days before the contractual date for payment. Hodgson JA agreed with the orders and substantially with those reasons, but decided the case on a narrower basis; he left open whether one payment claim could include amounts due under several earlier progress claims and whether any time limit applied, preferring Heydon JA's view on the time limit only tentatively.

Court of Appeal, Supreme Court of New South Wales, 26 July 2002

Under the New South Wales security of payment Act as it then stood, a valid payment claim had to be supported by a reference date; on the contract in this case, none arose once the remaining work was taken out of the contractor's hands (suspending payment) or, alternatively, once the contract was terminated.

High Court of Australia, 21 December 2016

Under the South Australian security of payment Act, a retention clause under which release depended on completion of the head contract was a pay when paid provision of no effect, so the adjudicator made no error of law.

High Court of Australia, 14 February 2018

In July 2026 the New South Wales Court of Appeal held unanimously that section 42(3) of the Building and Construction Industry (Security of Payment) Act 2021 (WA), which requires a party applying for adjudication review to give the other party a copy of the application within one business day, is a jurisdictional requirement. By majority (Free JA and McHugh JA, Ward P dissenting on that question and in the result), the court also held that emailing a link to the application documents held in an online repository did not give them "by email" under section 113(3)(d) of that Act, so the review adjudicator lacked jurisdiction and the appeal was allowed.

Court of Appeal, Supreme Court of New South Wales, 15 July 2026

In the version the Court applied, sections 28M, 28O and 28R of the Victorian security of payment Act are not inconsistent with the Australian Consumer Law, so a principal whose claim of misleading conduct goes only to final entitlements must pay the adjudicated amount (subject to any stay of execution) and pursue that claim separately.

Court of Appeal, Supreme Court of Victoria, 9 June 2026

In February 2026 the New South Wales Court of Appeal, applying the Building and Construction Industry Security of Payment Act 1999 (NSW), held that an adjudicator's decision that he lacked jurisdiction, made after the period for an adjudication response had ended and after he had considered both parties' material, was a "determination" for the purposes of the Act. It also found no error in the primary judge's conclusion that the claimant's fresh application to a second adjudicator was an abuse of process, and dismissed the claimant's appeal with costs.

Court of Appeal, Supreme Court of New South Wales, 10 February 2026

Under the Building and Construction Industry Security of Payment Act 1999 (NSW), the New South Wales Court of Appeal held, by majority (Leeming JA, with whom Free JA agreed; Adamson JA dissenting), that an adjudicator who applied a supposed "Cardno test", disregarding substantiating documents first supplied with the adjudication application because they would probably have altered the payment schedule, made an error that was not jurisdictional, and dismissed the appeal. All three judges held that the test was an error of law, but Leeming JA treated that ground as one that could not decide the appeal.

Court of Appeal, Supreme Court of New South Wales, 18 June 2025

The New South Wales Court of Appeal held, under that State's security of payment Act, that property owners who had dealt by email with invoices described as payment claims under that Act had impliedly specified the email address for service, so a payment claim and a notice of intention to apply for adjudication were served when emailed there and the adjudicator had jurisdiction, although neither came to the owners' attention until weeks later. The Court also held that, had the documents been served only on 11 June 2024, when the owners became aware of them, the adjudication application would have been premature and the determination void. The appeal was dismissed.

Court of Appeal, Supreme Court of New South Wales, 16 May 2025

Under the New South Wales Building and Construction Industry Security of Payment Act 1999, only a substantial denial of procedural fairness by an adjudicator is jurisdictional error, and on the facts there was none where the adjudicator adopted and confirmed conversion rates the claimant had applied without explanation.

Court of Appeal, Supreme Court of New South Wales, 2 November 2023

Under the New South Wales Building and Construction Industry Security of Payment Act 1999, as it stood before amendments in 2019, any requirement that a payment claim relate to only one construction contract is for the adjudicator, not a precondition to validity; on the facts, the work orders in issue did not each create a separate contract, at least for the subcontract's Category B works.

Court of Appeal, Supreme Court of New South Wales, 3 June 2022

Under the Victorian security of payment Act, as it applied to a 2019 payment claim, an adjudicator may infer from a respondent's failure to provide a payment schedule that it was not in a position to contest the payment claim, and section 23(2)(b) requires the adjudicator to consider the provisions of the contract the parties executed but not documents incorporated into it by reference, such as drawings, unless the parties provide them or the adjudicator requires them; the Court of Appeal granted leave to appeal from the Trial Division's dismissal of the judicial review proceeding and dismissed the appeal.

Court of Appeal, Supreme Court of Victoria, 25 September 2020

In 2020 the New South Wales Court of Appeal held, under the Building and Construction Industry Security of Payment Act 1999 (NSW), that a contractor's statutory entitlement to a progress payment, which arose on a reference date before the principal took the work out of the contractor's hands, was not extinguished by that take-out. It also held that an adjudicator who expressly declined to determine the amount of the progress payment had committed jurisdictional error and that the contractor did not have to obtain a court declaration that the first determination was void before it applied for a second adjudication.

Court of Appeal, Supreme Court of New South Wales, 11 August 2020

In 2018 the New South Wales Court of Appeal held that, under the Building and Construction Industry Security of Payment Act 1999 (NSW) as it then stood, the scope of a payment claim was a matter for the adjudicator, and an error in understanding the payment claim was not a jurisdictional error for which the determination could be quashed. Basten JA, with whom Meagher and Leeming JJA agreed, allowed the head contractor's appeal against an order quashing an adjudicator's determination.

Court of Appeal, Supreme Court of New South Wales, 21 December 2018

On an application for leave to appeal, the Court of Appeal held that, under the Victorian security of payment Act, an adjudicator's failure to determine an adjudication application within the time allowed by section 22(4) does not make the determination void, and that the appeal and the builder's notice of contention should be dismissed.

Court of Appeal, Supreme Court of Victoria, 13 November 2018

Under the South Australian security of payment Act, a retention clause under which release depended on completion of the head contract was a pay when paid provision of no effect, so the adjudicator made no error of law.

High Court of Australia, 14 February 2018

Under the New South Wales security of payment Act, the Supreme Court cannot quash an adjudicator's determination for an error of law on the face of the record that is not a jurisdictional error.

High Court of Australia, 14 February 2018

Under the New South Wales Building and Construction Industry Security of Payment Act 1999, an adjudicator who rejected a head contractor's liquidated damages set-off by inferentially applying the prevention principle did not deny it procedural fairness, where it had itself put an extension of time in issue and the subcontractor had raised acts of prevention.

Court of Appeal, Supreme Court of New South Wales, 23 June 2017

Under the Victorian security of payment Act, the Court of Appeal held that the fixing of the reference date for a final payment claim under section 9(2)(d) is a jurisdictional fact reviewable on judicial review, and dismissed a claimant's appeal from a decision that his payment claim was out of time and the adjudication determination of no legal effect.

Court of Appeal, Supreme Court of Victoria, 27 November 2015

A majority of the New South Wales Court of Appeal held that, where an adjudicator issued only a void determination, a claimant's five business days for a new adjudication application under section 26 of the Building and Construction Industry Security of Payment Act 1999 (NSW) ran from the end of the time for a valid determination, not from a later declaration of voidness.

Court of Appeal, Supreme Court of New South Wales, 16 December 2011

Under the New South Wales Building and Construction Industry Security of Payment Act 1999, where no payment schedule was provided and the claim was not paid in full, notice within the time fixed by section 17(2)(a) is an essential condition of a valid adjudication application, and the Supreme Court may quash a determination where the notice was late.

Court of Appeal, Supreme Court of New South Wales, 24 September 2010

In 2009 the New South Wales Court of Appeal, applying Brodyn Pty Ltd v Davenport under the Building and Construction Industry Security of Payment Act 1999 (NSW) as it then stood, held that what a payment schedule indicated as its reasons was a matter for the adjudicator, and that an error by the adjudicator about it did not make the determination void. Giles JA, with whom McColl and Young JJA agreed, also considered, although it was not necessary to the result, that a payment schedule could indicate reasons by referring to an earlier payment schedule.

Court of Appeal, Supreme Court of New South Wales, 23 June 2009

In 2008 the New South Wales Court of Appeal, applying principles from Brodyn Pty Ltd v Davenport that were not challenged on the appeal, held under the Building and Construction Industry Security of Payment Act 1999 (NSW) as it then stood that an adjudication determination was not invalid even if the adjudicator erred in law in valuing the payment claim, because he had addressed the task the Act set him and dealt with the parties' submissions. The Court also rejected a procedural fairness challenge and an argument that the principal's payment of a subcontractor had been impliedly requested or adopted by the claimant.

Court of Appeal, Supreme Court of New South Wales, 31 October 2008

In 2007 the New South Wales Court of Appeal dismissed an appeal from a decision that an adjudicator's determination under the Building and Construction Industry Security of Payment Act 1999 (NSW), as it then stood, was void, although its reasons differed in part from the trial judge's. Giles JA, with whom Santow JA and Tobias JA agreed, held that an adjudicator who arrives at the adjudicated amount by a process wholly unrelated to the matters section 22(2) requires the adjudicator to consider has not made a determination. This adjudicator, having said he had no evidence on which to value the work independently, had adopted the claimant's valuation because the respondent had made unmeritorious challenges to the payment claim's validity.

Court of Appeal, Supreme Court of New South Wales, 28 February 2007

In the Equity Division of the Supreme Court of New South Wales, McDougall J dismissed a natural justice and good faith challenge to an adjudicator's determination under the New South Wales security of payment Act, holding that the adjudication response and statutory declaration need be considered only as submissions supporting the payment schedule and that the delay costs valuation stayed within the dispute joined [5], [22], [65], [85], [86], [87].

Supreme Court of New South Wales, 19 January 2007

In 2005 the New South Wales Court of Appeal dismissed a contractor's appeal against the refusal of relief from an adjudication determination that allowed its subcontractor's contractual "delay damages", all three judges rejecting the argument that, under the Building and Construction Industry Security of Payment Act 1999 (NSW) as it then stood, such amounts could not be payments "for construction work".

Court of Appeal, Supreme Court of New South Wales, 13 July 2005

In 2005 the New South Wales Court of Appeal dismissed a contractor's appeal against the refusal of relief from two adjudication determinations that included a subcontractor's contractual "delay damages", all three judges accepting that, under the Building and Construction Industry Security of Payment Act 1999 (NSW) as it then stood, such delay damages could amount to payments "for construction work".

Court of Appeal, Supreme Court of New South Wales, 13 July 2005

In the Equity Division of the Supreme Court of New South Wales, Nicholas J held, on the single issue left for decision, that an arrangement under which a nominated subcontractor undertook joinery work for a developer was a construction contract within the New South Wales security of payment Act, because the arrangement need not impose a legally enforceable liability to pay, and that the developer's summons to have an adjudicator's determination declared void should be dismissed [5], [41], [43], [55], [56], [58].

Supreme Court of New South Wales, 11 February 2005

In the Equity Division of the Supreme Court of New South Wales, McDougall J dismissed a summons to quash an adjudicator's determination under the New South Wales security of payment Act as amended, holding that the existence of a reference date was not a jurisdictional fact and that contractual preparation costs and delay costs could form part of a progress payment calculated under the contract, and that although allowing compound interest (if the adjudicator did) exceeded jurisdiction, relief should be refused in discretion [26], [39], [42], [43], [106], [121], [122], [136], [137], [138].

Supreme Court of New South Wales, 23 July 2004

This judgment of McDougall J in the Equity Division of the Supreme Court of New South Wales concerned an adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) [1]. His Honour held that the ten business day limit in section 21(3)(a) is a procedural condition, so that a determination made after it is not for that reason invalid [6], [21]. At a final hearing held by agreement, he dismissed MPM's amended summons with costs [5], [36].

Supreme Court of New South Wales, 27 February 2004

In the Administrative Law List of the Common Law Division of the Supreme Court of New South Wales, McDougall J held that TransGrid's summons for judicial review of an adjudicator's determination under the Building and Construction Industry Security of Payment Act should be dismissed, because the adjudicator was not bound by the Superintendent's certificate, any error in finding variations directed in writing was within jurisdiction because he had sought to apply the contract and TransGrid, having offered no evidence of its own, was not denied natural justice [32], [33], [54], [65], [66], [71].

Supreme Court of New South Wales, 6 February 2004

In the Supreme Court of New South Wales, McDougall J dismissed a summons seeking certiorari and related relief against an adjudicator's determination under the Building & Construction Industry Security of Payment Act (NSW), holding that the Act's requirement to calculate and value in accordance with the terms of the contract refers to the contractual mechanism and not to the certifier, so the adjudicator was not bound by the architect's progress certificate and any error in assessing delay costs was within jurisdiction [38], [39], [46], [47], [55], [57]. The Act applied was the Building & Construction Industry Security of Payment Act 1999 (NSW), under which Renascent served its payment claim on 25 August 2003 [1].

Supreme Court of New South Wales, 14 November 2003

In the Equity Division of the Supreme Court of New South Wales, McDougall J held that an adjudicator's determination under the New South Wales security of payment Act, as amended, is open to judicial review for jurisdictional error, including jurisdictional error of law, or for denial of natural justice, but not for non-jurisdictional error of law, and quashed a determination on both grounds [19], [40], [43], [45], [54], [109], [124], [145].

Supreme Court of New South Wales, 31 October 2003

In the version the Court applied, sections 28M, 28O and 28R of the Victorian security of payment Act are not inconsistent with the Australian Consumer Law, so a principal whose claim of misleading conduct goes only to final entitlements must pay the adjudicated amount (subject to any stay of execution) and pursue that claim separately.

Court of Appeal, Supreme Court of Victoria, 9 June 2026

In February 2026 the New South Wales Court of Appeal, applying the Building and Construction Industry Security of Payment Act 1999 (NSW), held that an adjudicator's decision that he lacked jurisdiction, made after the period for an adjudication response had ended and after he had considered both parties' material, was a "determination" for the purposes of the Act. It also found no error in the primary judge's conclusion that the claimant's fresh application to a second adjudicator was an abuse of process, and dismissed the claimant's appeal with costs.

Court of Appeal, Supreme Court of New South Wales, 10 February 2026

In 2025 the New South Wales Court of Appeal held that a builder suing for a statutory debt under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) had not shown a "construction contract", because, viewed objectively, the communications and conduct, including an email agreeing to commercial conditions while looking to a later formal contract, did not show an intention to be bound immediately. The court also held that a party relying on an "other arrangement" in the Act's definition must plead the material facts said to make it up, and it limited an indemnity costs order to the period from the date of a Calderbank offer that the builder had unreasonably not accepted.

Court of Appeal, Supreme Court of New South Wales, 4 November 2025

In 2025 the New South Wales Court of Appeal held that a respondent which had served no payment schedule could not resist summary judgment under the Building and Construction Industry Security of Payment Act 1999 (NSW) by arguing that the payment claim was in substance a claim for damages or restitution. Free JA, with whom McHugh and Ball JJA agreed, applied EnerMech Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd: the Act implies no precondition to validity that a payment claim be objectively one "for" construction work. On a test the parties accepted, the court also held that the claim, read with its spreadsheet and the earlier invoices it referred to, purported in a reasonable way to identify the work, so that there was no patent failure to identify it, and it ordered summary judgment for the claimant.

Court of Appeal, Supreme Court of New South Wales, 19 June 2025

The New South Wales Court of Appeal held, under that State's security of payment Act, that property owners who had dealt by email with invoices described as payment claims under that Act had impliedly specified the email address for service, so a payment claim and a notice of intention to apply for adjudication were served when emailed there and the adjudicator had jurisdiction, although neither came to the owners' attention until weeks later. The Court also held that, had the documents been served only on 11 June 2024, when the owners became aware of them, the adjudication application would have been premature and the determination void. The appeal was dismissed.

Court of Appeal, Supreme Court of New South Wales, 16 May 2025

In 2023 the New South Wales Court of Appeal held that an email answering a payment claim was not a payment schedule under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act), because it gave no reason of the required kind for withholding payment of the variations, a distinct and substantial component of the claim. The court said that, in general, a response that gives no reason directed to such a component does not sufficiently indicate why the scheduled amount is less than the amount claimed.

Court of Appeal, Supreme Court of New South Wales, 13 December 2023

In 2021 the New South Wales Court of Appeal held that an email telling a subcontractor there would be "no payment for above Invoices, until all works been completed" did not indicate why nothing was to be paid, as section 14(3) of the Building and Construction Industry Security of Payment Act 1999 (NSW) required, and that earlier emails not incorporated into it could not be used to give it the particularity it lacked. The subcontractor was given judgment for its two payment claims with interest.

Court of Appeal, Supreme Court of New South Wales, 9 September 2021

On an application for leave to appeal from a judgment for part of the claimed amount under section 16(2)(a)(i) of the Victorian security of payment Act (as amended in 2006, in the form the Court set out), a majority of the Court of Appeal held that section 16(4)(a)(ii) prevents judgment for the claimant, even for the balance, if the claimed amount indicated in the payment claim includes an excluded amount; leave was granted, the appeal allowed and the claim dismissed. All three judges rejected the argument that the court must look beyond the payment claim and its supporting documents to decide that question, although the majority did not need to decide it.

Court of Appeal, Supreme Court of Victoria, 5 March 2021

In 2020 the New South Wales Court of Appeal refused developers leave to appeal from a refusal to stay execution of a judgment entered against them under the Building and Construction Industry Security of Payment Act 1999 (NSW) after they failed to serve a payment schedule. In joint reasons explaining why no point of principle warranted leave, Bell P, Macfarlan and Leeming JJA found nothing in the principles for staying such a judgment where the builder may be unable to repay to suggest that they apply to a judgment debtor that says it cannot pay, and held that section 32 of the Act speaks to the parties' legal rights, not to the practical effect of enforcement on them.

Court of Appeal, Supreme Court of New South Wales, 19 June 2020

In 2017 the New South Wales Court of Appeal held that a builder which had filed an adjudication certificate as a judgment under the Building and Construction Industry Security of Payment Act 1999 (NSW) did not have to notify the developer before enforcing that judgment by a garnishee order. Granting leave but dismissing the appeal, the court also declined to disturb the primary judge's discretionary refusal to set the garnishee order aside and order repayment, where the developer had challenged the determination but had sought no undertaking or interlocutory relief.

Court of Appeal, Supreme Court of New South Wales, 23 March 2017

In 2009 the New South Wales Court of Appeal held that, under the State's security of payment Act as it then stood, a claimant could not obtain judgment on a later payment claim for amounts that an adjudicator determined on an earlier claim. Macfarlan JA, with whom Handley AJA agreed, held that issue estoppel applied to the issues the adjudicator decided; Allsop P decided the case under section 13(5) and left the estoppel question open.

Court of Appeal, Supreme Court of New South Wales, 15 April 2009

In 2007 the New South Wales Court of Appeal, deciding the appeal on a basis favourable to the contractor, held that, under the contract before it, the principal could properly retain the contractor's performance security as security for its claim to recover adjudicated amounts it had paid under the Building and Construction Industry Security of Payment Act 1999 (NSW). Giles JA, with whom Tobias and McColl JJA agreed, also held that retaining the security in that way did not offend the Act's prohibition on contracting out.

Court of Appeal, Supreme Court of New South Wales, 18 June 2007

In 2006 the New South Wales Court of Appeal held that section 15(4)(b)(ii) of the Building and Construction Industry Security of Payment Act 1999 (NSW), as it then stood, did not stop a respondent sued for an unpaid claimed amount from defending on the ground that the claimant's alleged misleading conduct had caused its failure to provide a payment schedule. Two of the three judges also held that a valid payment claim did not require a bona fide belief in the entitlement claimed.

Court of Appeal, Supreme Court of New South Wales, 28 August 2006

In 2005 the New South Wales Court of Appeal granted leave to appeal but dismissed an appeal from a summary judgment entered against a respondent to a payment claim in proceedings under section 15 of the Building and Construction Industry Security of Payment Act 1999 (NSW), after no payment schedule had been served. All three judges agreed that the respondent's defence, that the payment claim did not identify the work, did not prevent summary judgment. Hodgson JA and Santow JA gave separate reasons, and Santow JA disagreed with part of Hodgson JA's test. Ipp JA, for the reasons given by Hodgson JA, treated compliance as a matter for adjudication rather than a ground for resisting summary judgment, whereas Santow JA considered that it could be raised in resisting summary judgment in an appropriate case.

Court of Appeal, Supreme Court of New South Wales, 23 November 2005

In 2005 the New South Wales Court of Appeal dismissed an appeal from a judgment for a contractor, Isis Projects Pty Ltd, for a statutory debt under the Building and Construction Industry Security of Payment Act 1999 (NSW), as the Act then stood. Mason P, with whom Giles JA and Santow JA agreed, held that two progress claims sufficiently identified the construction work to which they related, read objectively and in the context of the parties' earlier dealings. He also rejected an argument by Clarence Street Pty Ltd, which had served no payment schedule, that the due date for payment had not arrived because the claims had not met the contract's requirements for claims for payment: the argument was barred by section 15(4)(b)(ii), and it failed in any event on the facts and on the terms of the contract.

Court of Appeal, Supreme Court of New South Wales, 16 November 2005

In the Equity Division of the Supreme Court of New South Wales, after an adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) had been held valid, Einstein J held that funds paid into court by the head contractor were to be released to the subcontractor under an enforceable agreement, and that the Grosvenor principle, applicable only where the claimant is actually or very close to insolvent, did not prevent release [1], [3], [20], [22], [59], [61], [69].

Supreme Court of New South Wales, 17 June 2005

In the Supreme Court of Victoria, Byrne J dismissed a subcontractor's appeal and refused it leave to proceed against a head contractor bound by a deed of company arrangement, where the subcontractor sought judgment on an adjudicated amount under the Victorian security of payment legislation only to recover that amount from the principal [7], [17], [18], [19].

Supreme Court of Victoria, 18 February 2005

In the Supreme Court of New South Wales, McDougall J gave a contractor judgment for its payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW), holding that the principal's letter proposing to pay nothing was in form a valid payment schedule but was not provided because his Honour found it was not posted [2], [30], [46], [49], [58].

Supreme Court of New South Wales, 9 December 2004

In the Supreme Court of New South Wales, on a motion to stay execution of a judgment entered on an adjudication certificate under the Building and Construction Industry Security of Payment Act (NSW), Einstein J held that where the claimant's insolvency made it certain that the respondent's right to recoup the adjudicated amount would be rendered nugatory, the proper exercise of the discretion was to stay execution on terms, especially as a bank guarantee apparently already protected the claimant [31], [32], [33], [35], [36].

Supreme Court of New South Wales, 27 April 2004

In the Equity Division of the Supreme Court of New South Wales, Einstein J held that a builder should have summary judgment on a payment claim under the Building and Construction Industry Security of Payment Act (NSW) as it then stood, because the claim was valid despite including old rock excavation work and delay costs and the superintendent's certificate was not a payment schedule [102], [104], [106], [112]. His Honour also held that the principal's separate proceedings should be summarily dismissed, among other reasons as an abuse of process [108].

Supreme Court of New South Wales, 3 December 2003

Under section 10A(3)(d)(ii) of the Victorian security of payment Act, a dispute clause that ends in mediation and then recourse to the courts is not a "method of resolving disputes" that takes disputed variations outside adjudication, and where section 11(1)(b) governs valuation and the contract allows the superintendent's pricing to be disputed, the adjudicator is not bound to adopt that pricing.

Court of Appeal, Supreme Court of Victoria, 26 May 2016

Under the Victorian security of payment Act, as it applied to a 2019 payment claim, an adjudicator may infer from a respondent's failure to provide a payment schedule that it was not in a position to contest the payment claim, and section 23(2)(b) requires the adjudicator to consider the provisions of the contract the parties executed but not documents incorporated into it by reference, such as drawings, unless the parties provide them or the adjudicator requires them; the Court of Appeal granted leave to appeal from the Trial Division's dismissal of the judicial review proceeding and dismissed the appeal.

Court of Appeal, Supreme Court of Victoria, 25 September 2020

Under section 10A(3)(d)(ii) of the Victorian security of payment Act, a dispute clause that ends in mediation and then recourse to the courts is not a "method of resolving disputes" that takes disputed variations outside adjudication, and where section 11(1)(b) governs valuation and the contract allows the superintendent's pricing to be disputed, the adjudicator is not bound to adopt that pricing.

Court of Appeal, Supreme Court of Victoria, 26 May 2016

In the Equity Division of the Supreme Court of New South Wales, McDougall J dismissed a summons to quash an adjudicator's determination under the New South Wales security of payment Act as amended, holding that the existence of a reference date was not a jurisdictional fact and that contractual preparation costs and delay costs could form part of a progress payment calculated under the contract, and that although allowing compound interest (if the adjudicator did) exceeded jurisdiction, relief should be refused in discretion [26], [39], [42], [43], [106], [121], [122], [136], [137], [138].

Supreme Court of New South Wales, 23 July 2004

In the Administrative Law List of the Common Law Division of the Supreme Court of New South Wales, McDougall J held that TransGrid's summons for judicial review of an adjudicator's determination under the Building and Construction Industry Security of Payment Act should be dismissed, because the adjudicator was not bound by the Superintendent's certificate, any error in finding variations directed in writing was within jurisdiction because he had sought to apply the contract and TransGrid, having offered no evidence of its own, was not denied natural justice [32], [33], [54], [65], [66], [71].

Supreme Court of New South Wales, 6 February 2004

In 2025 the New South Wales Court of Appeal held that a respondent which had served no payment schedule could not resist summary judgment under the Building and Construction Industry Security of Payment Act 1999 (NSW) by arguing that the payment claim was in substance a claim for damages or restitution. Free JA, with whom McHugh and Ball JJA agreed, applied EnerMech Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd: the Act implies no precondition to validity that a payment claim be objectively one "for" construction work. On a test the parties accepted, the court also held that the claim, read with its spreadsheet and the earlier invoices it referred to, purported in a reasonable way to identify the work, so that there was no patent failure to identify it, and it ordered summary judgment for the claimant.

Court of Appeal, Supreme Court of New South Wales, 19 June 2025

In December 2023 the New South Wales Court of Appeal held that a letter of demand sent by the solicitors for a construction company's administrators, with updated tax invoices attached, was not a payment claim under section 13 of the Building and Construction Industry Security of Payment Act 1999 (NSW) when read objectively and as a whole. The recipient's failure to serve a payment schedule in reply therefore did not make it liable under the Act for the $545,353.18 demanded, and its appeal was allowed with costs.

Court of Appeal, Supreme Court of New South Wales, 14 December 2023

In 2009 the New South Wales Court of Appeal held that, under the State's security of payment Act as it then stood, a claimant could not obtain judgment on a later payment claim for amounts that an adjudicator determined on an earlier claim. Macfarlan JA, with whom Handley AJA agreed, held that issue estoppel applied to the issues the adjudicator decided; Allsop P decided the case under section 13(5) and left the estoppel question open.

Court of Appeal, Supreme Court of New South Wales, 15 April 2009

In 2006 the New South Wales Court of Appeal held that section 15(4)(b)(ii) of the Building and Construction Industry Security of Payment Act 1999 (NSW), as it then stood, did not stop a respondent sued for an unpaid claimed amount from defending on the ground that the claimant's alleged misleading conduct had caused its failure to provide a payment schedule. Two of the three judges also held that a valid payment claim did not require a bona fide belief in the entitlement claimed.

Court of Appeal, Supreme Court of New South Wales, 28 August 2006

In 2005 the New South Wales Court of Appeal granted leave to appeal but dismissed an appeal from a summary judgment entered against a respondent to a payment claim in proceedings under section 15 of the Building and Construction Industry Security of Payment Act 1999 (NSW), after no payment schedule had been served. All three judges agreed that the respondent's defence, that the payment claim did not identify the work, did not prevent summary judgment. Hodgson JA and Santow JA gave separate reasons, and Santow JA disagreed with part of Hodgson JA's test. Ipp JA, for the reasons given by Hodgson JA, treated compliance as a matter for adjudication rather than a ground for resisting summary judgment, whereas Santow JA considered that it could be raised in resisting summary judgment in an appropriate case.

Court of Appeal, Supreme Court of New South Wales, 23 November 2005

In 2005 the New South Wales Court of Appeal dismissed an appeal from a judgment for a contractor, Isis Projects Pty Ltd, for a statutory debt under the Building and Construction Industry Security of Payment Act 1999 (NSW), as the Act then stood. Mason P, with whom Giles JA and Santow JA agreed, held that two progress claims sufficiently identified the construction work to which they related, read objectively and in the context of the parties' earlier dealings. He also rejected an argument by Clarence Street Pty Ltd, which had served no payment schedule, that the due date for payment had not arrived because the claims had not met the contract's requirements for claims for payment: the argument was barred by section 15(4)(b)(ii), and it failed in any event on the facts and on the terms of the contract.

Court of Appeal, Supreme Court of New South Wales, 16 November 2005

In 2005 the New South Wales Court of Appeal dismissed a contractor's appeal against the refusal of relief from an adjudication determination that allowed its subcontractor's contractual "delay damages", all three judges rejecting the argument that, under the Building and Construction Industry Security of Payment Act 1999 (NSW) as it then stood, such amounts could not be payments "for construction work".

Court of Appeal, Supreme Court of New South Wales, 13 July 2005

In 2005 the New South Wales Court of Appeal dismissed a contractor's appeal against the refusal of relief from two adjudication determinations that included a subcontractor's contractual "delay damages", all three judges accepting that, under the Building and Construction Industry Security of Payment Act 1999 (NSW) as it then stood, such delay damages could amount to payments "for construction work".

Court of Appeal, Supreme Court of New South Wales, 13 July 2005

In 2004 the New South Wales Court of Appeal held that, under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act), as it then stood, a payment claim met the twelve-month limit for service if some of the work for which payment was claimed had been carried out in that period, even though one item in the claim had been completed more than twelve months before service.

Court of Appeal, Supreme Court of New South Wales, 3 November 2004

In 2002 the New South Wales Court of Appeal refused a main contractor leave to appeal from a judgment for its subcontractor on a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW), as the Act then stood. Heydon JA, with whom Ipp AJA agreed, held that a payment claim could be served even though it related to work done in periods before the month of service, and rejected an argument that it had to be served at least ten business days before the contractual date for payment. Hodgson JA agreed with the orders and substantially with those reasons, but decided the case on a narrower basis; he left open whether one payment claim could include amounts due under several earlier progress claims and whether any time limit applied, preferring Heydon JA's view on the time limit only tentatively.

Court of Appeal, Supreme Court of New South Wales, 26 July 2002

Under the New South Wales security of payment Act, the 10 business days a respondent has to provide a payment schedule run from when the payment claim is served under the Act, and a contract clause deeming an after-hours email to be received on the next business day cannot extend that period.

Court of Appeal, Supreme Court of New South Wales, 23 July 2025

Hearing an injunction application as the trial of the action, Kaye J in the Practice Court of the Supreme Court of Victoria held that a notice referring a dispute to a contractual Dispute Committee of the parties' own representatives, whose role was to reach agreement, did not commence the kind of proceedings the Victorian Building and Construction Industry Security of Payment Act requires before a respondent may give security instead of paying an adjudicated amount, so Vaughan, the payment claimant, could enforce the guarantee [1], [2], [26], [28], [29].

Supreme Court of Victoria, 29 November 2006