Case Law Repository
A curated repository of significant security of payment decisions across Australian and international jurisdictions, with summaries of the principal findings in each case.
Legislative Framework
Security of payment legislation provides a statutory right to progress payments and a rapid adjudication mechanism for the resolution of payment disputes in the construction industry. The following cases represent significant judicial decisions that have shaped the interpretation and application of this legislation across Australian jurisdictions and the wider Asia-Pacific region.
This repository is maintained as a reference resource and is updated as new decisions of significance are handed down. For detailed analysis of recent decisions, refer to our Insights & Case Reviews page.
Western Australia
Key decisions under the Western Australian security of payment regime, which operates on the “West Coast” model with a prescribed review mechanism and dual payment claim system.
Established that an adjudicator’s determination is enforceable as a judgment debt and clarified the scope of judicial review available under the WA Act. Considered the role of the prescribed appointer and procedural compliance requirements.
Court of Appeal decision addressing the interaction between the Construction Contracts Act 2004 and common law rights, confirming that the statutory adjudication process operates alongside, rather than in substitution for, contractual and common law remedies.
Examined the definition of “construction contract” under the WA Act and considered whether particular types of contracts fall within the scope of the legislation. Provided guidance on the broad statutory definition adopted in Western Australia.
Addressed the enforcement of adjudication determinations and the limited grounds upon which a court may set aside a determination. Confirmed the legislative intent to preserve cash flow in the construction industry.
District Court decision considering the rapid adjudication provisions and the requirement for a payment dispute to exist before an application for adjudication may be made under the WA statutory regime.
New South Wales
New South Wales enacted the first security of payment legislation in Australia. The “East Coast” model has generated substantial jurisprudence and continues to be a reference point for other jurisdictions.
Seminal Court of Appeal authority on the availability of judicial review of adjudication determinations. Established the distinction between jurisdictional error and non-jurisdictional error in the context of the NSW Act, setting the framework for challenges to determinations.
Reconsidered and refined the Brodyn framework, holding that certain statutory preconditions are essential to the validity of an adjudication determination. Extended the availability of certiorari relief for jurisdictional errors under the Act.
Addressed the requirements for a valid payment claim under the NSW Act, including the identification of the construction work to which the claim relates and the consequences of non-compliance with formal requirements.
High Court of Australia decision addressing whether a reference date must exist at the time a payment claim is served. Confirmed that the existence of a reference date is a precondition to a valid payment claim under the NSW Act.
High Court authority on the availability and scope of judicial review of adjudication determinations under the NSW Act. Confirmed that jurisdictional error renders a determination void and that certiorari lies to quash such determinations.
Considered the validity of payment claims served during the administration of a company and the interaction between the SOP Act and the Corporations Act insolvency provisions.
Queensland
Queensland operates a dual regime following the 2017 reforms, incorporating both an adjudication mechanism and a trust account framework for the retention of project funds.
Considered the requirement for adjudicators to afford procedural fairness and the consequences of a denial of natural justice in the adjudication process under the Queensland legislation.
Court of Appeal authority on the scope of “construction work” under the Queensland Act. Addressed whether mining and resource-related activities fall within the statutory definition and the jurisdictional consequences of that characterisation.
Examined the interaction between contractual dispute resolution mechanisms and the statutory adjudication regime, confirming that the right to adjudication cannot be contracted out of under the Queensland legislation.
Addressed the calculation of progress payment entitlements and the proper construction of the statutory payment provisions under the reformed Queensland Act.
High Court of Australia decision on the applicability of security of payment legislation to contracts involving trustees. Confirmed that the Act applies to natural persons and corporations acting in their capacity as trustees.
Northern Territory
The Northern Territory adopted the West Coast model, closely aligning with the Western Australian legislation in its structure and operation.
Addressed the scope of the NT legislation and the definition of “construction contract” within the statutory framework. Considered the availability of review where an adjudicator has exceeded jurisdiction.
Considered the operation of the rapid adjudication provisions and the enforcement of adjudicator’s determinations under the NT Act. Addressed the limited grounds available for resisting enforcement.
Examined the interaction between the statutory payment regime and contractual mechanisms for the determination of payment disputes, including the effect of superintendent’s certifications on adjudication applications.
Singapore
Singapore adopted an East Coast model based on the NSW legislation and has developed a substantial body of case law addressing adjudication and enforcement of payment claims.
Court of Appeal authority establishing the temporary finality of adjudication determinations under the Singapore SOP Act and the limited grounds upon which a determination may be challenged by way of setting aside application.
Addressed the distinction between patent errors and jurisdictional errors in adjudication determinations, clarifying the scope of the court’s supervisory jurisdiction over adjudicators.
Considered the formal requirements for valid payment claims under the Singapore Act, including the requirement for identification of the contract, the construction work performed and the claimed amount.
Malaysia
Malaysia introduced its security of payment regime in 2012, drawing upon both the Australian and Singaporean models.
Federal Court authority on the constitutional validity and operation of the Malaysian CIPAA. Confirmed the validity of the Act and established the principles governing judicial review of adjudication decisions.
Addressed the jurisdiction of adjudicators under CIPAA and the circumstances in which a stay of enforcement of an adjudication decision may be granted by the court.
Considered the scope of “construction contract” under CIPAA and the treatment of payment claims arising from subcontract arrangements within the statutory adjudication regime.
New Zealand
New Zealand’s construction contracts legislation was enacted in 2002 and amended in 2015. It provides a rapid adjudication mechanism that has generated significant judicial consideration.
Supreme Court of New Zealand decision on the scope of the Construction Contracts Act and the treatment of charge-up (cost-plus) claims under the statutory regime.
Addressed the enforcement of adjudicator’s determinations under the NZ Act and the limited circumstances in which a court may decline to enforce a determination on grounds of jurisdictional error.
Considered the procedural requirements for the service of payment claims and payment schedules, and the consequences of non-compliance with statutory timeframes under the NZ regime.
United Kingdom
The United Kingdom’s statutory adjudication regime was the progenitor of security of payment legislation internationally. Key decisions from the UK Technology and Construction Court continue to influence the development of the law across all jurisdictions.
First reported decision on the enforcement of adjudicator’s decisions under the HGCRA. Established the principle that adjudicator’s decisions are to be enforced summarily and that the unsuccessful party’s remedy lies in subsequent arbitration or litigation, not resistance to enforcement.
Court of Appeal authority on the enforceability of adjudicator’s decisions and the narrow grounds upon which enforcement may be resisted, including breach of the rules of natural justice.
Addressed the smash and grab adjudication mechanism and the consequences of a failure to serve a valid payment notice or pay less notice within the prescribed timeframes under the amended HGCRA.
Supreme Court decision on the availability of adjudication to companies in insolvent liquidation. Held that a company in liquidation may commence and pursue an adjudication, subject to the court’s discretion regarding enforcement.
Hong Kong
Hong Kong has been developing its security of payment framework. The following decisions relate to payment and adjudication issues arising in the Hong Kong construction industry context.
Addressed payment dispute resolution in the Hong Kong construction industry and the enforcement of contractual adjudication provisions in the absence of comprehensive statutory adjudication legislation.
Considered the operation of pay-when-paid and pay-if-paid clauses in Hong Kong and the contractual mechanisms available for the resolution of payment disputes in the absence of statutory adjudication.
Practitioner Insight
Neil Kirkpatrick is a registered adjudicator in Western Australia, New South Wales, Queensland and the Northern Territory. This repository reflects practical knowledge gained through adjudication appointments and advisory work across these jurisdictions.
