Comprehensive Repository
An extensive repository of security of payment decisions across all major jurisdictions, maintained as a working reference for practitioners and clients. For curated leading cases, see our Leading Cases overview.
New South Wales
New South Wales enacted the first Australian security of payment legislation. The “East Coast” model has generated the most substantial body of case law and remains a reference point for other jurisdictions.
Seminal Court of Appeal authority establishing that an adjudicator’s determination can only be challenged for jurisdictional error, substantial denial of natural justice, or non-compliance with essential requirements of the Act. Set the foundational framework for judicial review of adjudication determinations.
Established that jurisdictional error invalidates the entirety of an adjudicator’s determination; confirmed the requirement for precision and particularity in payment claims sufficient to apprise parties of the real issues in dispute.
Reconsidered and refined the Brodyn framework, holding that certain statutory preconditions are essential to the validity of an adjudication determination and extending the availability of certiorari relief for jurisdictional errors.
High Court of Australia decision confirming that the existence of a reference date is a precondition to a valid payment claim under the NSW Act. Clarified the temporal requirements for the service of payment claims.
Landmark High Court authority holding that the Supreme Court has no jurisdiction to quash an adjudicator’s determination for non-jurisdictional error of law on the face of the record. Limited judicial review to jurisdictional error only.
Companion High Court decision to Probuild; confirmed that “pay when paid” provisions are void under the Act and that the legislation applies to persons acting in their capacity as trustees.
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.
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.
Addressed whether a company subject to a Deed of Company Arrangement could access security of payment procedures. Established that funds would be preserved for distribution within the insolvency regime.
Confirmed that for a document to be characterised as a payment schedule under the SOP Act, it must satisfy sections 14(2) and (3) and must provide adequate reasons for withholding payment.
Found that a payment claim was valid despite the contract’s onerous attachment requirements; established that strict compliance may be waived if substantial compliance is achieved.
Found that the adjudicator had determined the dispute on a basis neither party contended, constituting a denial of natural justice. Confirmed that adjudicators must confine their determination to the issues raised by the parties.
Confirmed that section 32 of the SOP Act expressly preserves the rights of parties to bring a claim for damages notwithstanding non-payment of an outstanding judgment debt arising from adjudication.
Addressed the rights of insolvent contractors operating under a Deed of Company Arrangement to pursue security of payment claims. Clarified the interaction between the SOP regime and external administration.
Western Australia
Western Australia operates the “West Coast” model with a prescribed review mechanism and dual payment claim system. The regime has generated a growing body of case law since its introduction.
Established that an adjudicator’s determination is enforceable as a judgment debt and clarified the scope of judicial review available under the WA Act, including the role of the prescribed appointer.
Court of Appeal decision confirming that the statutory adjudication process operates alongside, rather than in substitution for, contractual and common law remedies.
Early decision establishing fundamental principles regarding security of payment and adjudication under the West Coast Model, including the scope of construction contract definitions.
Addressed the definition of construction work and the application of security of payment legislation to specialist services within the mining and resources sector.
Examined the definition of “construction contract” under the WA Act and provided guidance on the broad statutory definition adopted in Western Australia.
Addressed the enforcement of adjudication determinations and confirmed the legislative intent to preserve cash flow in the construction industry through limited grounds for resisting enforcement.
Addressed adjudication procedures and enforcement of determinations in Western Australia, including the procedural requirements for making an adjudication application.
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.
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.
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.
Considered the requirement for adjudicators to afford procedural fairness and the consequences of a denial of natural justice in the adjudication process.
Addressed the requirement for payment schedules to contain essential information and the consequences of defective payment schedules under Queensland legislation.
Confirmed that the right to adjudication cannot be contracted out of under the Queensland legislation and examined the interaction between contractual dispute resolution mechanisms and statutory adjudication.
Addressed the calculation of progress payment entitlements and the proper construction of the statutory payment provisions under the reformed Queensland Act.
Addressed the scope of adjudicator’s jurisdiction when reviewing payment claims that lack sufficient detail and precision under the Queensland regime.
Dealt with the applicability of security of payment legislation to government contracts and the definition of “construction work” under Queensland law.
Recent Court of Appeal decision addressing security of payment determinations and enforcement of adjudication decisions under the reformed Queensland legislation.
Victoria
Victoria adopted the East Coast model with certain unique features, including the “excluded amounts” regime which has generated distinct jurisprudence.
Established that once a company is placed into liquidation, it can no longer claim payment under the Victorian Security of Payment Act as it ceases to be a “claimant” within the statutory meaning.
Addressed excluded amounts under Victoria’s regime; held that inclusion of excluded amounts in a payment claim precludes enforcement as a debt in court proceedings.
Clarified the broad definition of “value of the work” under section 7(2)(c) to include contracts based on output rather than time-based or milestone-based payment structures.
Established that a genuine payment claim served prematurely could be valid under Victorian legislation, addressing the timing requirements for the service of claims.
Addressed questions regarding the application of security of payment legislation to specific contract arrangements and the scope of the statutory scheme in Victoria.
Northern Territory
The Northern Territory adopted the West Coast model, closely aligning with the Western Australian legislation in 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, including 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.
Key early case establishing principles regarding security of payment in the Northern Territory construction industry and the application of the West Coast model provisions.
United Kingdom
The United Kingdom’s statutory adjudication regime was the progenitor of security of payment legislation internationally. Decisions from the Technology and Construction Court continue to influence all common law jurisdictions.
First reported decision on the enforcement of adjudicator’s decisions under the HGCRA. Established the principle that decisions are to be enforced summarily and that the unsuccessful party’s remedy lies in subsequent proceedings.
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.
Established that an adjudicator must not apply his own knowledge to make good fundamental deficiencies in material without giving the other party opportunity to respond; must allow adequate time or resign.
Addressed the “smash and grab” adjudication mechanism and the consequences of a failure to serve a valid payment notice or pay less notice within 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.
Held that contractual payment provisions requiring payment on “sign-off” were compliant with the Construction Act; sign-off denotes an objective state capable of being reached.
Addressed non-compliance with section 108 HGCRA and the applicability of the Scheme for Construction Contracts where contractual provisions fail to comply with statutory requirements.
Recent decision addressing adjudicator validity and impartiality, and whether contractual adjudication terms contravene the requirements of the HGCRA.
Addressed the interplay between “conclusive evidence” provisions and adjudication proceedings under the Construction Act.
Court refused to strike out claim or stay proceedings despite mandatory adjudication clause, finding it would be disproportionate in the circumstances.
Singapore
Singapore adopted an East Coast model based on the NSW legislation and has developed substantial jurisprudence addressing adjudication, payment claims and enforcement.
Court of Appeal authority establishing the temporary finality of adjudication determinations 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.
Landmark decision establishing that any person who has carried out construction work has a statutory entitlement to payment; established the “roll up” doctrine for payment claims.
Considered the formal requirements for valid payment claims, including the requirement for identification of the contract, construction work performed and claimed amount.
Recent 2024 decision clarifying the lodgement period for adjudication applications under section 13(3)(a) of SOPA; the day entitlement arises under section 12(2) is excluded from the calculation.
Addressed the requirement for precision in payment claims and what constitutes adequate detail under the Singapore SOP Act for a payment claim to be valid.
Malaysia
Malaysia introduced its security of payment regime in 2012, drawing upon both the Australian and Singaporean models. The Federal Court has provided important guidance on the Act’s scope and operation.
Federal Court authority on the constitutional validity and operation of CIPAA. Confirmed the validity of the Act and established the principles governing judicial review of adjudication decisions.
Federal Court landmark holding that CIPAA applies only prospectively to contracts entered into after 15 April 2014; confirmed that “pay when paid” clauses violate section 35 CIPAA.
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.
Addressed the requirement for adjudicators to limit their determination to matters raised in the payment claim and response; confirmed that adjudicators must not determine matters beyond their terms of reference.
New Zealand
New Zealand’s construction contracts legislation provides a rapid adjudication mechanism and has generated significant judicial consideration at all levels of the New Zealand court hierarchy.
Supreme Court decision on the scope of the Construction Contracts Act and the treatment of charge-up (cost-plus) claims under the statutory regime.
Court of Appeal upheld section 12 as unambiguous; held that the Act applied to final claims notwithstanding parties’ agreement to refer disputes to arbitration.
Confirmed absolute prerequisites to contract formation in construction: intention to be immediately bound and agreement on essential terms. Required payment schedules to indicate contra charges with clarity.
Held that letters of intent and negotiations did not constitute a binding contract when parties could not agree on essential terms; awarded $7.47 million plus interest for reasonable costs of work performed.
Considered the procedural requirements for the service of payment claims and payment schedules, and the consequences of non-compliance with statutory timeframes.
Established that an adjudicator is not required to determine parties’ rights under the contract if the dispute is separate from contract rights and obligations under the statutory scheme.
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.
