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[2025] NSWCA 93
procedural. The stay was dissolved, the funds held in Court and any accrued interest were ordered paid immediately to Builtcom, VSD’s remaining notice of motion was dismissed, and VSD was ordered to pay...
The Court of Appeal decided that the money held in Court should be released to Builtcom rather than remain frozen while its appeal proceeded. Builtcom’s appeal concerned items the adjudicator had not assessed on their merits, but it did not challenge the approximately $8.5 million already awarded to Builtcom. VSD had not appealed the dismissal of its own challenge to that amount. The Court recognised that the parties disputed whether the Act would allow the unchallenged amount to be revisited after a remitter, but did not decide that question on this motion. It held that the Act’s payment-flow and risk-allocation policies favoured payment to Builtcom, with VSD bearing the interim risk of difficult restitution. The merits of the appeal and the meaning of s 32A remained unresolved.
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2,264 words · generated 07/10/2026
4 cited instruments linked from this judgment.
Builtcom was the builder and VSD the principal under a building contract for construction work in Burwood. On 22 November 2024, Builtcom served a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act), seeking approximately $30.6 million for work said to have been carried out between 1 October and 22 November 2024. VSD served a payment schedule on 4 December 2024, and Builtcom applied for adjudication on 17 December 2024 ([2]).
The adjudicator’s determination, dated 3 February 2025, awarded Builtcom approximately $8.5 million, including GST ([3]). However, the adjudicator treated 12 items in Builtcom’s claim as having a value of nil. The reason was not an assessment of those items on their merits. The adjudicator considered that Builtcom’s adjudication application included documents and details that had not appeared in its payment claim, and concluded that the additional material could have affected VSD’s valuation or reasoning in its payment schedule ([4]-[5]).
Builtcom and VSD then brought separate Supreme Court proceedings. Builtcom challenged the adjudicator’s treatment of the 12 items, alleging jurisdictional error. VSD separately challenged the approximately $8.5 million awarded to Builtcom. The money was paid into Court as part of the process of challenging the determination ([6]-[7]). On 11 April 2025, the primary judge dismissed both parties’ summonses ([8]).
The next question was what should happen to the money held in Court. On 2 May 2025, the primary judge ordered the funds paid to Builtcom, subject to a short stay. VSD applied to continue that stay while Builtcom’s appeal was pending ([1], [9]-[10]). The Court of Appeal heard the stay application on 5 May 2025. It dissolved the stay and ordered the funds, including any further amount paid in under the primary judge’s order and accrued interest, to be paid immediately to Builtcom. It also dismissed the balance of VSD’s motion and ordered VSD to pay Builtcom’s costs ([23]).
This was a procedural ruling about the custody and release of adjudication funds. It was not a decision on the merits of Builtcom’s appeal. The Court set the appeal down for hearing on 23 May 2025 and gave directions for the parties’ written submissions ([11]).
The key factor was the statutory policy governing payment under the Act. The Court referred to the Court of Appeal’s discussion in A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144. As quoted in this judgment, A-Civil describes two relevant policies: maintaining the flow of money to the subcontractor and, as an interim measure, placing insolvency risk on the principal ([19]). Those policies constrain the ordinary assessment of interlocutory relief, including the balance of convenience.
The Court applied that framework to the particular posture of the proceedings. Builtcom’s appeal concerned its complaint about the adjudicator’s treatment of certain claim items. It did not concern the approximately $8.5 million awarded in Builtcom’s favour. VSD had not appealed or cross-appealed the primary judge’s dismissal of VSD’s challenge to that amount ([20]-[21]). The Court therefore treated the adjudicated amount as not subject to an extant challenge in the proceedings before it.
VSD argued that, if Builtcom’s appeal succeeded and the matter were remitted, VSD might be able to challenge parts of the existing determination again. VSD also relied on a credit report said to show that Builtcom’s credit risk had worsened, and argued that it might be difficult to recover the money if the amount were later reduced ([14]-[15]). The Court did not decide whether VSD would actually be able to reopen the amount or whether restitution would in fact be difficult. It expressly recognised that the possibility depended on how s 32A was construed, an issue likely to arise on the appeal ([20]).
Nonetheless, the Court held that the asserted risk did not justify continuing the stay. If the scenario VSD advanced were legally possible, the statutory allocation of risk meant VSD, as principal, should bear the risk that restitution of some or all of the funds might be difficult or impossible ([21]). The Court also considered that Builtcom had waited for payment for work done in October and November 2024 and should not be required to wait longer where the adjudicated amount was not under challenge ([22]).
The scheduled early appeal hearing did not alter that conclusion. Adamson JA said that an early hearing date did not mean the decision would necessarily be given immediately, because the Court would need to address the parties’ arguments in its reasons ([21]). The stay application therefore turned on the substantive statutory risk allocation and the unchallenged status of the adjudicated amount, not simply on the proximity of the appeal hearing.
The judgment does not set out a comprehensive account of the law before this decision. It identifies two relevant sources: the text of s 32A and the earlier Court of Appeal discussion of stays in A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144. It also refers to Hynash Constructions Pty Ltd v BRP Industries Pty Ltd [2025] NSWCA 14 as an example of a judgment discussing the statutory scheme ([3]).
Section 32A was central to the parties’ competing arguments. Subsection (1) provides that, following a finding of jurisdictional error in relation to an adjudicator’s determination, the Supreme Court may set aside the whole or any part of the determination. Subsection (2) states that the Court may identify the part affected by jurisdictional error and set aside that part only, while confirming the part not affected ([13]). Builtcom relied on this wording to argue that the disputed items could be treated separately from the amount already determined. VSD argued that there could be only one determination for a payment claim and resisted the idea that the valid part could be severed from the invalid part ([14], [17]).
The Court did not resolve that statutory-construction dispute. It said that Builtcom’s argument had considerable force, but that the issue did not need to be determined on the stay application and might arise on the appeal ([20]). Accordingly, this judgment does not establish a definitive rule about whether a remitted adjudication may be confined to particular items, whether an adjudicator can revisit other items, or how a court should frame relief under s 32A.
The decision’s contribution is narrower and procedural. It applies the statutory risk allocation to a stay application where the builder’s appeal does not challenge the principal adjudication amount and the principal has not appealed the dismissal of its challenge to that amount. On those facts, the possibility of later dispute over whether the amount could be revisited did not prevent payment to the builder. The judgment emphasises that the risk of difficult restitution may rest with the principal under the Act’s interim scheme ([19]-[22]).
It is therefore important not to read the orders as determining the merits of the jurisdictional-error appeal. The Court dissolved a temporary stay and released funds. It did not decide whether the adjudicator had jurisdictional error, whether any items should be reconsidered, or whether the approximately $8.5 million could legally be revisited on remitter.
At [19], the judgment quotes A-Civil as describing the statutory policies as “to maintain the flow of money to the subcontractor” and “as an interim measure, to place the risk of insolvency on the principal.” In plain English, the Act is designed to keep adjudicated payments moving while disputes continue, rather than making the contractor wait until every issue is finally resolved. The principal may bear the temporary risk that the contractor cannot later repay money.
At [20], the Court said that the effect of s 32A “need not be determined in the present context.” In plain English, the stay application was not the occasion to decide the parties’ wider disagreement about whether the determination could be divided into affected and unaffected parts. That question remained for the appeal.
At [21], Adamson JA said that if VSD’s proposed possibility of revisiting the amount were correct, “it is consistent with the risk allocation in the Act that VSD bear the risk” that repayment might be difficult or impossible. The qualification matters: the Court did not hold that VSD could revisit the amount. It reasoned conditionally. Even if that scenario were legally available, the statutory allocation of interim risk favoured payment to Builtcom.
At [22], the Court said Builtcom had been waiting to be paid for work done in October and November 2024 and “ought not be required to wait any longer” given the Act’s risk allocation. This links the practical delay in payment to the statutory policy. It also reflects the fact that VSD had not brought an extant appeal against the approximately $8.5 million adjudicated amount.
Finally, the orders at [23] were direct: the stay was dissolved, the funds and interest were to be paid out to Builtcom, the rest of VSD’s motion was dismissed, and VSD was ordered to pay the costs. Those orders resolved the stay motion only.
The ruling is most directly relevant to an interim application about money paid into Court after a security-of-payment adjudication has been challenged. Its factual features include:
The judgment’s reasoning is not a general rule that money must always be released immediately whenever a contractor appeals. The Court stressed that interlocutory principles require separate application in each case, within the constraints of the Act’s policies, as stated in the A-Civil passage it quoted ([19]). Different procedural circumstances, including an extant challenge to the adjudicated amount or different relevant evidence, may require consideration not undertaken in this ruling.
Nor does the judgment decide that a principal can never obtain a stay based on restitution concerns. Its point is more specific: in this case, the possibility that VSD might later be able to revisit an amount that neither party was then challenging did not outweigh the statutory payment-flow policy. The Court left the legal premise behind that possibility unresolved ([20]-[22]).
The supplied judgment contains no decisions issued after 5 May 2025 that discuss or apply this ruling. It therefore does not establish how later courts have treated it, whether they have followed or distinguished its approach, or whether they have resolved the s 32A issue left open.
The judgment itself refers to three other decisions. It cites A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144 for the principles concerning stays and the Act’s statutory policies ([19]). It refers to Hynash Constructions Pty Ltd v BRP Industries Pty Ltd [2025] NSWCA 14 as an example of a decision discussing the statutory scheme ([3]). It also records the Supreme Court proceedings and their dismissal, reported as [2025] NSWSC 250 ([8]). Those references concern authorities preceding or forming the procedural background to this decision; they are not later treatment of Builtcom.
For research purposes, the safe account from this source is that the Court of Appeal applied the Act’s risk allocation to the particular stay application and left the construction of s 32A open. Any claim about subsequent treatment requires later judgments not included in the supplied text.
The principal open issue is the construction and practical operation of s 32A. The Court did not decide whether the Supreme Court may set aside only the parts affected by jurisdictional error while preserving unaffected parts, or how that power interacts with any remitted adjudication ([13]-[14], [17], [20]). Although the text of s 32A refers to setting aside “any part” and confirming the unaffected part, the judgment does not decide how that language applies to a single adjudication determination involving multiple claim items.
A related question is whether, after a successful challenge concerning some items, a principal could revisit items forming part of an amount that was not itself challenged in the proceedings. Adamson JA described that possibility as one that could not be ruled out at the stay stage, while noting that it seemed curious at first blush ([20]). The ruling neither confirms nor rejects the possibility.
The judgment also does not decide the merits of Builtcom’s jurisdictional-error argument. The background explains the adjudicator’s reasoning about additional material and the 12 items valued at nil, but the Court of Appeal did not determine whether the adjudicator was legally required to consider that material or whether the determination was affected by jurisdictional error ([4]-[6], [20]). Those matters were for the appeal.
Finally, the decision does not provide a general evidentiary threshold for establishing restitution risk in stay applications. VSD relied on credit-report material, while Builtcom gave no evidence about its financial position. The Court considered the statutory allocation and the status of the adjudicated amount sufficient to determine this motion, without making a finding about Builtcom’s actual capacity to repay or the likelihood of insolvency ([15], [18], [21]-[22]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Builtcom Constructions Pty Ltd v VSD Investments Pty Ltd as trustee for The VSD Investments Trust [2025] NSWCA 93
Hearing dates: 5 May 2025
Decision date: 05 May 2025
Before: Adamson JA
Decision: (1) Dissolve the stay ordered by Peden J on 2 May 2025.
(2) Direct that the funds held in Court, including any further amount paid in pursuant to order 2 made by Peden J on 2 May 2025, together with any interest accrued thereon, be immediately paid out of Court to the appellant, Builtcom Constructions Pty Ltd.
(3) Otherwise dismiss the first respondent’s notice of motion filed 1 May 2025.
(4) Order the first respondent to pay the appellant’s costs of the notice of motion.
Catchwords: BUILDING AND CONSTRUCTION — adjudication — judicial review — money paid into Court when adjudication sought to be challenged by principal — principal’s challenge dismissed by primary judge and not the subject of appeal — whether adjudicator’s determination not to address parts of builder’s claim affected by jurisdictional error on the basis that he erroneously found that some submissions were not “duly made” or failed to consider submissions — issue on appeal whether Court has power to constrain any remitted adjudication to parts affected by jurisdictional error — stay pending appeal refused as builder has determination in its favour and principal does not challenge that part of the determination referable to amount paid into court — risk allocation favoured by Building and Construction Industry Security of Payment Act 1999 (NSW)
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), s 32A
Cases Cited: A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144
Builtcom Construction Pty Ltd v VSD Investments Pty Ltd atf The VSD Investments Trust; VSD Investments Pty Ltd atf The VSD Investments Trust v Builtcom Construction Pty Ltd [2025] NSWSC 250
Hynash Constructions Pty Ltd v BRP Industries Pty Ltd [2025] NSWCA 14
Category: Procedural rulings
Parties: Builtcom Constructions Pty Ltd (Appellant)
VSD Investments Pty Ltd as trustee for The VSD Investments Trust (First Respondent)
Chris Thompson (Second Respondent)
Australian Building & Construction Dispute Resolution Service Pty Ltd (Third Respondent)
Representation: Counsel:
D Hume (Appellant)
A R Langshaw (First Respondent)
Submitting Appearance (Second Respondent)
No appearance (Third Respondent)
Solicitors:
Fortis Law (Appellant)
HWL Ebsworth Lawyers (First Respondent)
CTI Lawyers (Second Respondent)
Not applicable (Third Respondent)
File Number(s): 2025/146743
VSD, as principal, entered into a building contract with Builtcom, as builder, for construction work in Burwood. On 22 November 2024, Builtcom served on VSD a payment claim pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) for an amount in the order of $30.6 million in respect of work alleged to have been carried out between 1 October 2024 and 22 November 2024. On 4 December 2024, VSD served a payment schedule under the Act. On 17 December 2024, Builtcom lodged an adjudication application in respect of its payment claim. The matter was referred to Chris Thompson, the second respondent (the adjudicator), of Australian Building & Construction Dispute Resolution Service Pty Ltd (the third respondent). The second and third respondents filed submitting appearances in the Court below and can be expected to do so on appeal, as the second respondent has already done.
The adjudicator made a determination dated 3 February 2025 (the determination), which was released to the parties and which awarded Builtcom an amount in the order of $8.5 million including GST. The statutory scheme pursuant to which the process occurred is evident from the terms of the Act and has been the subject of several judgments of this Court: see, for example, Hynash Constructions Pty Ltd v BRP Industries Pty Ltd [2025] NSWCA 14 at [21]-[26] and [40]-[42] (Adamson JA, Bell CJ and Basten AJA agreeing).
The adjudicator declined to address several of the items which Builtcom claimed, including the 12 claims referred to in the extract below, on the following basis:
- In my view, the 12 claims … fall squarely within the ambit of Cardno. Clearly in relation to these 12 claims the materials provided by the Claimant in its adjudication application go outside the scope and information provided by the Claimant in its payment claim. The Cardno test is, if there is a new document that is only advanced with the adjudication application, the adjudicator is required to consider whether the presence of the same document in the original payment claim would be enough to change the valuation or reasoning in the payment schedule.
- In applying the Cardno test to the present matter, it is irrefutable that the new documents, which were neither included, referenced or otherwise mentioned in the payment claim, were only advanced in the adjudication application. I am firmly of the view that had the documents relied upon and included in the adjudication application been present in the payment claim, the Respondent would most likely have changed its valuation or reasoning in its payment schedule.
- Further as referenced in Cardno, as in this current matter, the Claimant included a single figure in its payment claim and did not provide sufficient details in its payment claim to enable the Respondent to accept or reject or properly assess each claim as the missing details were only included in the adjudication application. Once again, unfortunately for the Claimant it can only blame itself for the manner in which it prepared the payment claim in relation to these items and in the circumstances, I am of the view that the 12 claims (as set out in the table at paragraph 102 above) should each be valued at $Nil and value each as such.
In respect of the items for which this explanation was given by the adjudicator, there has been no actual adjudication on the merits as such. Rather, the adjudicator determined that the items must be valued at nil because Builtcom provided additional material in its adjudication application as to those items beyond that which it included in its payment claim.
On 5 February 2025, Builtcom commenced proceedings in the Technology and Construction List of the Equity Division of the Supreme Court. It claimed that the adjudicator had made a jurisdictional error in declining to consider its claims on the basis set out in the reasons (extracted above) and sought an order pursuant to s 32A of the Act “and any other enabling power of the Court”, setting aside those parts of the determination relating to those claims and seeking an order in the nature of mandamus, injunction or remitter, ordering the second respondent to determine these claims. On 6 February 2025, VSD commenced separate proceedings in the same list, challenging the determination in so far as it determined an adjudication amount in the order of $8.5 million in favour of Builtcom.
On 7 February 2025, Stevenson J ordered VSD to pay the amount of the determination (in the order of $8.7 million, which included adjudicator’s fees and interest) into Court, this being the usual consequence of a party seeking to challenge an adjudication.
The two proceedings were heard together by the primary judge, who, on 11 April 2025, dismissed both Builtcom’s and VSD’s summonses and ordered each party to pay its own costs: Builtcom Construction Pty Ltd v VSD Investments Pty Ltd atf The VSD Investments Trust; VSD Investments Pty Ltd atf The VSD Investments Trust v Builtcom Construction Pty Ltd [2025] NSWSC 250.
On 29 April 2025, the primary judge ordered the parties to confer on further orders necessary to give effect to the reasons.
On 2 May 2025, the primary judge made the following orders in both proceedings:
1. The funds held in Court, currently in the amount of $8,779,088.34, and including any further amount paid in pursuant to order 2, together with any interest accrued thereon, be immediately paid out of Court to the plaintiff, Builtcom Constructions Pty Ltd.
2. On the conditions that:
a. the First Defendant gives the usual undertaking as to damages;
b. the First Defendant pays into Court the sum of $72,441.38 by 5pm on 2 May 2025;
order 1 is stayed until the earlier of further order, including further order by the Court of Appeal, or 5pm on Tuesday, 6 May 2025.
(1) List the matter for hearing on 23 May 2025 with an estimate of 1 day.
(2) The appellant to file and serve written submissions by COB on 6 May 2025.
(3) The first respondent to file and serve written submissions by COB on 16 May 2025.
(4) The appellant to file and serve written submissions in reply by COB on 21 May 2025.
(5) Orange book to be filed by COB on 21 May 2025.
(6) The directions hearing listed for 14 May 2025 is vacated.
The ambit and effect of s 32A of the Act, which was referred to in argument, is relevant to the appeal. Its significance also arises in the context of the stay application since it bears on the question whether the amount already awarded by the adjudicator to Builtcom could be reduced as a result of the appeal, thereby warranting a stay so as to protect VSD’s right to restitution, if it be found that it was not obliged to pay that amount.
Section 32A of the Act provides:
32A Finding of jurisdictional error in adjudicator’s determination
(1) If, in any proceedings before the Supreme Court relating to any matter arising under a construction contract, the Court makes a finding that a jurisdictional error has occurred in relation to an adjudicator’s determination under this Part, the Court may make an order setting aside the whole or any part of the determination.
(2) Without limiting subsection (1), the Supreme Court may identify the part of the adjudicator’s determination affected by jurisdictional error and set aside that part only, while confirming the part of the determination that is not affected by jurisdictional error.
(Emphasis added.)
Mr Langshaw, who appeared on behalf of VSD in this Court, submitted that the balance of convenience, particularly given the early hearing date allocated, was in favour of the continuation of the stay granted by the primary judge. He submitted that, if this Court on appeal set aside the determination, it would be open to VSD to reiterate its challenge to the items which the adjudicator allowed in favour of Builtcom or rejected to the detriment of VSD (such as its claim for set-offs) in his determination which specified an adjudication amount in the order of $8.5 million. He contended that it would not be open to this Court to set aside the determination in part since there could only ever be a single determination in respect of a payment claim referred to adjudication. He described as “heretical” the concept that the Court could sever the otherwise valid part of a determination and make an order in the nature of mandamus in respect of the invalid part. Accordingly, he submitted that s 32A did not authorise an order along these lines.
Mr Langshaw also relied on evidence extracted from a credit report on Builtcom, which indicated that Builtcom’s credit risk had deteriorated substantially between November 2024 to the present day. He submitted that if the monies were paid out to Builtcom, it would be difficult for VSD to obtain restitution of the monies in whole or in part, if the scenario painted above ensued (that is, that VSD were permitted in a future adjudication to claw back the $8.5 million odd amount already determined in favour of Builtcom).
Mr Langshaw further submitted that Builtcom was the author of its present misfortune (not having the benefit of monies paid into court by VSD) since, if it were to discontinue the appeal, it would have an unassailable right to have the monies paid out.
Mr Hume, who appeared for Builtcom, relied on s 32A of the Act to contend that it expressly empowers the Court to set aside the whole or “any part” of the determination and that Mr Langshaw’s submission that the whole payment claim would have to be dealt with afresh if any part of it was infected by jurisdictional error ought be rejected. He submitted that there was no realistic prospect that, whether the appeal were dismissed or allowed, Builtcom’s entitlement to the $8.5 million odd would be reduced.
Builtcom did not give evidence in opposition to the stay application as to its financial position. It has paid out the sub-contractors which were identified as not having been paid by VSD in its initial submissions. It would be surprising if it did not have cash flow problems in circumstances where no part of its claim for payment for work done in October and November 2024 has been paid.
In A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144, this Court (Payne JA, Simpson AJA and Basten AJA) considered the principles concerning interlocutory relief in proceedings such as the present where a determination is sought to be set aside for jurisdictional error. The Court said, of present relevance:
21 Where money is paid into Court under s 25(4) at the commencement of a case seeking to set aside a determination for jurisdictional error, the court has power to stay the payment out of money to the claimant under the determination pending resolution of the respondent’s judicial review proceedings. … the power must be exercised in accordance with the policy of the Security of Payment Act. In both cases a stay or interlocutory injunction will impinge on the two statutory policies, namely, (i**) to maintain the flow of money to the subcontractor, and (ii) as an interim measure, to place the risk of insolvency on the principal.**
22 The application of the general principles governing the grant of interlocutory relief, including determining whether there is a serious question to be tried and where the balance of convenience lies, will be constrained by the need to give effect to these statutory policies. Further, the principles will require separate application in each case. For example, with respect to a judicial review challenge to the validity of an adjudicator’s determination, the risk of the principal’s insolvency is met by the payment into court. The interruption to the money flow is likely to be for a relatively brief period, given the limited scope of the available judicial review proceeding and the ability of the Court to dispose of such proceedings expeditiously. …
(Emphasis added.)
There is considerable force in Mr Hume’s submission about the effect of s 32A. However, it need not be determined in the present context. It may arise for determination on the appeal. There are various possibilities: if this Court dismisses Builtcom’s appeal, Builtcom will be entitled to the monies paid into Court in full, together with interest; if it allows the appeal, then the matter will, presumably be dealt with by the adjudicator (or an adjudicator). This is neither the time nor the occasion to predict whether the scenario painted by Mr Langshaw will ensue. While it would, at first blush, seem curious that VSD could revisit items that formed part of the (presently unchallenged) figure in the order of $8.5 million, I cannot rule out that consequence at this stage since it depends on the construction of s 32A of the Act which will, in all likelihood, arise on the appeal. The construction arguments which Mr Langshaw outlined for me on the stay application will, no doubt, be augmented and developed on appeal. It is, however, noteworthy that VSD has not sought to appeal the dismissal of its claim before the primary judge that the determination of the amount in the order of $8.5 million was affected by jurisdictional error.
Although an early hearing date for the appeal has been allocated, it does not follow that a stay is warranted, having regard to the balance of convenience. It cannot be assumed that this Court’s decision will be given immediately, having regard to the need to address in its reasons the various arguments raised by the parties. While the appeal is likely to be determined relatively soon after the hearing date, I am not persuaded that it is appropriate to continue the stay. Builtcom’s challenge does not affect the $8.5 million adjudication amount and VSD has not filed an appeal or cross-appeal. If Mr Langshaw is correct that, notwithstanding neither party challenges this amount, it can nonetheless be revisited on remitter, it is consistent with the risk allocation in the Act that VSD bear the risk that restitution of any part of the monies paid out of court to Builtcom will be difficult or impossible.
As Mr Hume pointed out and I accept, Builtcom has been waiting to be paid for work done in October and November 2024 and ought not be required to wait any longer, having regard to the risk allocation evident from the Act, which is in favour of the contractor being paid the adjudicated amount determined by an adjudicator under the Act, in circumstances where there is no extant challenge to that amount.
For the reasons given above, I make the following orders:
Dissolve the stay ordered by Peden J on 2 May 2025.
Direct that the funds held in Court, including any further amount paid in pursuant to order 2 made by Peden J on 2 May 2025, together with any interest accrued thereon, be immediately paid out of Court to the appellant, Builtcom Constructions Pty Ltd.
Otherwise dismiss the first respondent’s notice of motion filed 1 May 2025.
Order the first respondent to pay the appellant’s costs of the notice of motion.
**********
Builtcom Constructions Pty Ltd
VSD Investments Pty Ltd as trustee for The VSD Investments Trust [2025] NSWCA 93
The stay was dissolved, the funds held in Court and any accrued interest were ordered paid immediately to Builtcom, VSD’s remaining notice of motion was dismissed, and VSD was ordered to pay Builtcom’s costs of the motion.