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[2026] NSWCA 9
respondent. Appeal dismissed with costs. The primary judgment's relief restraining Kwik Flo from taking steps to register or enforce the second adjudication determination was not disturbed [109].
The Court of Appeal held that the first adjudicator's decision counted as a determination because it came after the required adjudication steps and consideration of the parties' positions. Kwik Flo could not simply treat that decision as having no effect and start again before another adjudicator. The second application re-raised the same jurisdiction issue, supported by additional evidence, and SE Ware had consistently objected to that process. The appeal was dismissed with costs.
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2,472 words · generated 08/10/2026
The dispute arose from discussions in about March 2022 about jointly developing SE Ware's land in Fairfield. The parties agreed that they had reached an oral agreement, but they disagreed about its terms. Kwik Flo's account was that it would finance a mixed-use development, take steps to obtain a construction certificate, and receive proceeds from most of the lots. It also said SE Ware would pay 30 per cent of costs associated with obtaining the certificate and that an implied term required SE Ware to pay costs and a reasonable margin if the project did not proceed. SE Ware disputed important parts of that account, including the alleged 30 per cent contribution and the implied term [29]-[30]. Some work was done, but no construction certificate was obtained and the land remained undeveloped [31].
10 cited instruments linked from this judgment.
On 15 May 2025, Kwik Flo lodged an adjudication application under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act), based on a payment claim for $3 million plus GST for building works and alleged loss of profit [32]. SE Ware's adjudication response disputed any payment liability and argued that the contract was excluded from the Act by s 7(2)(c), which concerns contracts where consideration is calculated otherwise than by reference to the value of work or related goods and services [33].
The first adjudicator considered the parties' competing accounts and concluded that the contract fell within that exclusion. His 11 June 2025 document was headed as a determination under the SOP Act. It stated that no adjudicated amount, due date or interest rate applied, because he considered that the Act did not apply and that he lacked jurisdiction to determine the claim [34]-[37].
Kwik Flo then purported to withdraw its first application and made a new application to a different nomination body on 20 June 2025. Its position was that the first adjudicator had not made a “determination” for the purposes of the Act, so it could make a new application under s 26 [38]. In the second adjudication, Kwik Flo supplied further statutory declarations, including evidence from an accountant involved in the project discussions [39]. SE Ware participated, but argued that the first determination bound the parties and that a second application would be an abuse of process [40].
On 14 July 2025, the second adjudicator reached different conclusions about both jurisdiction and the agreement, and awarded Kwik Flo $1.2 million [41]. SE Ware went to the Supreme Court, seeking to quash the second determination and prevent its registration or enforcement. The primary judge found that the first adjudicator's decision was a determination under the Act and that the second process was an abuse of process [42]-[54]. The Court of Appeal dismissed Kwik Flo's appeal with costs [109].
The Court addressed two questions. First, was the first adjudicator's decision a determination for the purposes of the SOP Act? Second, was the second adjudication an abusive repetition of the first process?
On the first question, the Court rejected an approach that would decide the meaning of “determination” by looking first at selected statutory words and considering purpose only afterwards. Griffiths AJA said that text, context and purpose must be considered together [60]-[63]. The relevant purpose included preventing a claimant from seeking successive adjudications until it found an adjudicator who accepted its position. The Court relied on the policy described in Dualcorp and noted that this concern sat uneasily with Kwik Flo's proposed construction [64]-[68].
The structure of the Act also mattered. Sections 17 to 22 provide a process leading to an adjudicator's determination. Among other things, s 21(1) prohibits an adjudicator from determining an application until the respondent's time to lodge an adjudication response has ended [71]. Here, the first adjudicator waited until the response period had ended, received SE Ware's response, considered both parties' evidence and submissions, and then issued a detailed decision [74]. The Court emphasised that the fact that the adjudicator called the document a determination was not itself decisive. The important point was that the decision followed the statutory procedure [75].
The Court did not treat the absence of an express reference to jurisdiction in s 22(1) as decisive. It referred to Citta Hobart for the proposition that a statutory decision-maker has incidental authority to form an opinion about the limits of its own jurisdiction for the purpose of deciding what action to take [76]. The Court's conclusion was a contextual one: a jurisdictional ruling made through the adjudication process could be part of a determination for purposes of the Act, even though the adjudicator concluded that the Act did not apply.
The Court distinguished Olympia Group. There, the adjudicator ruled before the respondent's response period had expired and apparently did not examine the payment claim or payment schedule. The adjudicator formed a view on jurisdiction very soon after accepting the nomination [77]-[87]. In Kwik Flo, by contrast, the decision came after the statutory response opportunity and after detailed material from both sides had been considered [74], [86]-[92]. The procedural sequence, rather than the label “threshold”, was central to the distinction.
On the second question, the Court found that the second process re-agitated the same jurisdiction issue. Kwik Flo's additional evidence did not transform that into a different issue; the jurisdiction question was being tried again with different supporting material [103]. Nor did it matter that the second adjudicator went on to consider the substantive claim after finding jurisdiction. That further step occurred because Kwik Flo had initiated a second application on a changed evidential presentation [105].
The Court also noted that SE Ware had participated in the second adjudication but had made clear that it considered the process abusive [40], [106]. Participation therefore did not, on the facts described, mean that SE Ware had abandoned its objection. The Court found no error in the primary judge's reasoning or conclusion on abuse of process [108].
The judgment does not describe a wholesale change to the SOP Act or announce a new statutory procedure. It applies existing principles of statutory construction and the existing statutory scheme to a contested question: whether a jurisdictional decision that declines to determine a payment claim can nevertheless be a “determination” for purposes of the Act.
Before this judgment, the authorities discussed in the reasons had already established important parts of the framework. Dualcorp described the policy against repetitious re-agitation [64]-[65]. Brodyn set out basic and essential requirements associated with an adjudicator's determination [69]-[70]. Chase Oyster had overruled aspects of Brodyn, but Griffiths AJA considered the passage identifying those requirements remained good law [70]. Citta Hobart supplied the explanation for a statutory decision-maker's incidental authority to form an opinion about its own jurisdiction [76].
The decision's contribution is its application of those principles to a jurisdictional ruling made after the relevant statutory steps. It confirms, on these facts, that the statutory character of a decision is not determined merely by whether an amount is payable or whether the adjudicator found jurisdiction. The process leading to the decision matters [73]-[75]. The contrast with Olympia Group and the discussion of Forte Appeal make timing and observance of procedure particularly significant [86]-[92].
The judgment also confirms that the abuse-of-process analysis is not confined to repeating an identical evidentiary case. A second application may re-agitate the same issue even where the claimant supplies additional evidence aimed at overcoming the first adjudicator's reasons [103]-[105]. The Court did not decide that every repeat application or every additional piece of evidence is abusive. Its reasoning concerned a second application involving the same payment claim and a renewed contest over jurisdiction, where the first ruling was not asserted to be void for jurisdictional error [98], [103].
The reasons preserve an important qualification. They discuss Parrwood, where a second adjudication was pursued on the premise that the first determination was void for jurisdictional error. The Court distinguished that situation because neither party in Kwik Flo asserted that the first adjudicator's jurisdictional decision was void [93]-[98]. The decision therefore does not resolve every situation in which a party claims that a first adjudication was legally ineffective.
At [67], Griffiths AJA said the narrow construction of “determination” sat “uncomfortably” with the policy of preventing repetitive re-agitation. In plain English, the Court considered that a reading allowing a claimant to restart after an unfavourable jurisdictional ruling could undermine the Act's finality features.
At [68], the Court explained that treating the first decision as a determination did not remove all recourse where jurisdictional error occurred. It referred to judicial review and s 26 as possible routes where a ruling is affected by jurisdictional error. The Court also noted that Kwik Flo had never asserted that the first adjudicator's decision was void for jurisdictional error. The point is that the case was not decided on the footing that the first decision was legally invalid.
At [75], the Court stressed that the first adjudicator's use of a formal “determination” label did not itself settle its legal status. What mattered was that the decision followed the statutory steps. In practical terms, a decision's legal character depends on the process and statutory setting, not just the heading on the document.
At [86]-[92], the Court explained why Olympia Group did not control. The adjudicator there ruled before the response period ended, unlike the adjudicator in Kwik Flo. The Court treated observance of the statutory sequence as a principled distinction, not an incidental factual difference.
At [103], the Court said that the jurisdiction issue had been re-agitated on different supporting evidence. In plain English, the second application did not become a new issue merely because the claimant added evidence intended to improve its case.
At [105], the Court rejected the suggestion that the second adjudication was not abusive because it considered the substantive merits as well. The second adjudicator reached the merits only after Kwik Flo had brought a new application and put jurisdiction back in issue. The Court's analysis therefore focused on the repetition that led to the second merits decision.
The reasoning is most directly engaged where a first adjudicator has received the parties' material, allowed the respondent the statutory opportunity to respond, and then decides that the SOP Act does not apply or that jurisdiction is absent. Where the claimant then submits the same payment claim to another adjudicator and re-raises the same jurisdiction question, the decision indicates that the second process may attract an abuse-of-process objection, particularly if the first ruling is not said to be void for jurisdictional error [74]-[75], [98], [103].
Additional evidence does not necessarily take a second application outside that concern. The Court's reasoning applies where the further evidence goes to the same jurisdictional issue that was previously considered, rather than establishing that the later application concerns a genuinely different claim or issue [103]-[105].
The contrast with Olympia Group is also significant. A jurisdictional decision made before the respondent's response period has ended, without the adjudicator considering the claim materials, may raise a different question about whether a determination has been made [83], [86]-[87]. The Court did not establish a complete checklist for all cases, but it treated compliance with the statutory sequence as a central distinction.
The reasoning also leaves a different situation open: where a party asserts that the first determination is void for jurisdictional error. Parrwood was distinguished on that basis, and the Court noted that neither party here advanced that position [93]-[98]. A lawyer considering another dispute would likely examine the first decision's process, the alleged error, the identity of the payment claim and issues, the evidence used in each adjudication, and any steps taken to challenge the first decision.
The judgment is dated 10 February 2026. The provided text contains no decisions after that date applying, distinguishing or reconsidering Kwik Flo. Accordingly, later treatment cannot be established from this judgment alone.
The judgment itself explains how earlier authorities informed its reasoning. It follows the general approach to statutory construction in SZTAL and Ravbar [60], relies on Dualcorp's account of the policy against repetitious re-agitation [64]-[65], and applies Citta Hobart's explanation of a statutory decision-maker's incidental authority to form an opinion about jurisdiction [76]. It explains that Brodyn's listed requirements remain relevant notwithstanding later treatment in Chase Oyster [69]-[70].
For the closer factual comparison, the Court distinguished Olympia Group because of its different procedural sequence [86]-[87]. It agreed broadly with the reasoning in Forte Appeal and rejected the argument that Forte Appeal was plainly wrong [90]-[92]. It distinguished Parrwood because, unlike in that case, neither party here asserted that the first decision was void for jurisdictional error [93]-[98]. These are the precedent relationships stated in the judgment, not evidence of how later courts have treated Kwik Flo itself.
The judgment expressly left some matters unresolved. Griffiths AJA observed at [108] that it was difficult to reconcile the primary judge's statement that the second determination should be restrained even if the first were void for jurisdictional error with Parrwood. However, the point did not strictly arise because the primary judge's statement was obiter. The Court therefore did not decide how abuse-of-process principles would apply where the first ruling was void for jurisdictional error.
The judgment also does not provide an exhaustive definition of when a jurisdictional decision will count as a determination. It identifies the statutory procedure and the facts of this case as important, but says that it was unnecessary to provide an exhaustive list of all requirements for the existence of a determination [71]-[75]. Cases involving different procedural departures, different kinds of jurisdictional objection, or different statutory provisions may require separate analysis.
A further question concerns the timing of court intervention. The Court acknowledged arguments both for seeking restraint while a second adjudication is underway and for discouraging court intervention until adjudication has concluded [107]. It held that SE Ware's participation did not defeat its position because it had made clear throughout that it regarded the second process as abusive [106]. The reasons do not establish a universal rule about when an objection must be brought or whether participation will have different consequences in other circumstances.
Finally, the decision does not determine whether every supplementary-evidence application is abusive, or whether a later application based on materially different issues would be treated the same way. Its holding concerns the same payment claim and a renewed jurisdiction contest, on evidence that could have been put before the first adjudicator [103]-[105]. The scope of the principle beyond those facts remains for future cases.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, get a qualified Australian lawyer to check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Kwik Flo Pty Ltd v SE Ware Street Dev Pty Ltd [2026] NSWCA 9
Hearing dates: 28 November 2025
Date of orders: 10 February 2026
Decision date: 10 February 2026
Before: Mitchelmore JA at [1];
Griffiths AJA at [2];
Price AJA at [110].
Decision: Appeal dismissed with costs.
Catchwords: BUILDING AND CONSTRUCTION — payment claim — where parties engaged in two adjudicative processes — whether a decision by an adjudicator as to lack of jurisdiction to carry out the statutory functions of an adjudicator constitutes a “determination” — whether second adjudication determination is an abuse of process — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 22, 26
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 4, 5, 7, 8, 9, 13, 14, 15, 16, 17, 17A, 19, 20, 21, 22, 24, 25, 26, 29, 32, 32A
Cases Cited: Alucity Architectural Produce Supply Pty Ltd v Australian Solutions Centre [2016] NSWSC 608
Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
Builtcom Constructions Pty Ltd v VSD Investments Pty Ltd as trustee for the VSD Investments Trust (No 2) [2025] NSWCA 134
Carr v State of Western Australia (2007) 232 CLR 138; [2007] HCA 47
Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225; [2023] NSWCA 215
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190
Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16
Comino v Kremetis (2023) NSWLR 224; [2023] NSWSC 23
Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190; [2009] NSWCA 69
Forte Sydney Carlingford Development Pty Ltd v Li [2022] FCA 1499
Forte Sydney Carlingford Development Pty Ltd v Forte Sydney Carlingford Pty Ltd [2024] FCAFC 9
Mustac v Medical Board of Western Australia [2007] WASCA 128
Olympia Group (NSW) Pty Ltd v Hansen Yuncken Pty Ltd [2011] NSWSC 165
Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWCA 172
Ravbar v Commonwealth of Australia (2025) 99 ALJR 1000; [2025] HCA 25
SE Ware Street Dev Pty Ltd v Kwik Flo Pty Ltd [2025] NSWSC 1060
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Texts Cited: Nil
Category: Principal judgment
Parties: Kwik Flo Pty Ltd (Appellant)
SE Ware Street Dev Pty Ltd (Respondent)
Representation: Counsel:
Mr G Sirtes SC with Dr E Ball (Appellant)
Mr D Hughes SC with Mr S D Puttick (Respondent)
Solicitors:
HWL Ebsworth Lawyers (Appellant)
Mills Oakley Lawyers (Respondent)
File Number(s): 2025/00376821
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
In around March 2022, representatives of the appellant, Kwik Flo Pty Ltd (Kwik Flo), and the respondent, SE Ware Street Dev Pty Ltd (SE Ware), discussed jointly developing land in Fairfield. Although the parties reached an agreement as to the development, it was not reduced to writing, and the parties fell into dispute concerning the terms of that agreement.
The parties engaged in two adjudicative processes under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act). The first adjudicator found that he did not have jurisdiction to determine the payment claim because the contract upon which it was based fell within an exception under the SOP Act. Kwik Flo subsequently purported to withdraw its initial adjudication application and made a new application to a different nomination body. The second adjudicator made a determination in the appellant’s favour after making different findings from the first adjudicator as to both the issue of jurisdiction and the terms of the agreement.
SE Ware commenced proceedings in the Supreme Court seeking to have the second adjudicator’s determination quashed and an order permanently restraining the appellant from taking any steps to register that determination as a judgment or enforce it, which were ultimately granted by the primary judge.
Kwik Flo appeals against the primary judgment on two grounds. Ground 1 contends that the primary judge erred in concluding that the decision by the first adjudicator regarding his jurisdiction to determine the matter constituted a “determination” for the purposes of the SOP Act. Ground 2 challenges the primary judge’s decision to grant injunctive relief restraining Kwik Flo from taking any steps to register to enforce a second adjudicative determination on the basis of abuse of process.
The Court held (Griffiths AJA, Mitchelmore JA and Price AJA agreeing) dismissing the appeal with costs:
As to Ground 1
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34; Ravbar v Commonwealth of Australia (2025) 99 ALJR 1000; [2025] HCA 25, cited.
Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190; [2009] NSWCA 69; Builtcom Constructions Pty Ltd v VSD Investments Pty Ltd as trustee for the VSD Investments Trust (No 2) [2025] NSWCA 134, cited.
Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394; Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190; Forte Sydney Carlingford Development Pty Ltd v Forte Sydney Carlingford Pty Ltd [2024] FCAFC 9; Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWCA 172, considered.
Olympia Group (NSW) Pty Ltd v Hansen Yuncken Pty Ltd [2011] NSWSC 165, distinguished.
As to Ground 2
Forte Sydney Carlingford Development Pty Ltd v Li [2022] FCA 1499; Forte Sydney Carlingford Development Pty Ltd v Forte Sydney Carlingford Pty Ltd [2024] FCAFC 9, cited.
MITCHELMORE JA: I agree with Griffiths AJA.
GRIFFITHS AJA: The statute which is at the heart of this appeal is intended to create a statutory entitlement for contractors to receive prompt and effective progress payments for carrying out construction work to which the legislation applies. The statutory regime provides for an expeditious process of adjudication in the event of a dispute. The parties’ contractual rights and obligations are preserved. The statutory regime is one which is intended to limit the opportunity for judicial intervention, but there are some exceptions.
Despite these relatively clear statutory objectives, parties persist in exploring every conceivable argument with a view to encouraging courts to intervene in the operation of the statutory scheme. These proceedings are a further example of this creative persistence, which may reflect the complex nature of some of the statutory provisions and the practical difficulties in applying those provisions to the seemingly infinite factual circumstances underpinning building disputes.
At first glance, this appeal appears relatively straightforward. There are only two grounds of appeal from the judgment of Peden J in SE Ware Street Dev Pty Ltd v Kwik Flo Pty Ltd [2025] NSWSC 1060 (primary judgment or PJ).
Ground 1 relates to her Honour’s finding that a decision by an adjudicator under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP A****ct) that he lacked jurisdiction to carry out the statutory functions of an adjudicator constituted a “determination” for the purposes of the SOP Act. The critical issue on this aspect of the appeal is whether the primary judge erred in so concluding.
Ground 2 challenges the primary judge’s decision to grant injunctive relief restraining the appellant from taking any steps to register or enforce a second determination on the basis of abuse of process.
Despite the relatively straightforward appearance of the grounds of appeal, the nuances and complexities necessarily mean that, perhaps regrettably, these reasons for judgment are lengthier than might instinctively be thought ideal. It will also be necessary to consider a large body of caselaw relied upon by the parties.
The reasons are structured as follows:
(a) The relevant parts of the statutory scheme summarised. (b) The two adjudicative processes summarised. (c) The primary judgment summarised. (d) The grounds of appeal and the parties’ primary submissions summarised. (e) Why both grounds of appeal should be dismissed. (f) Conclusion.
The Security of Payment Act was enacted in 1999 and has been adopted with variations in other Australian jurisdictions (although not all). The legislation has given rise to numerous questions of construction and many authorities have explained the legislative scheme: Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [3] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). The New South Wales legislation has been amended on several occasions, notably by the Building and Construction Industry Security of Payment Amendment Act 2002 (NSW), the Building and Construction Industry Security of Payment Amendment Act 2013 (NSW), and the Building and Construction Industry Security of Payment Amendment Act 2018 (NSW).
The High Court in Southern Han at [4] and again in Shade Systems at [39] quoted the explanation of the original design of the Security of Payment Act given by the responsible minister when introducing amending legislation in 2002:
The Act was designed to ensure prompt payment and, for that purpose, the Act set up a unique form of adjudication of disputes over the amount due for payment. Parliament intended that a progress payment, on account, should be made promptly and that any disputes over the amount finally due should be decided separately. The final determination could be by a court or by an agreed alternative dispute resolution procedure. But meanwhile the claimant’s entitlement, if in dispute, would be decided on an interim basis by an adjudicator, and that interim entitlement would be paid.
The Minister went on to say that cash flow was the “lifeblood of the construction industry” and that the government was “determined that, pending final determination of all disputes, contractors and subcontractors should be able to obtain a prompt interim payment on account, as always intended under the Act”: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 November 2002 at 6542…
3 Object of Act
(1) The object of this Act is to ensure that any person who undertakes to carry out construction work (or who undertakes to supply related goods and services) under a construction contract is entitled to receive, and is able to recover, progress payments in relation to the carrying out of that work and the supplying of those goods and services.
(2) The means by which this Act ensures that a person is entitled to receive a progress payment is by granting a statutory entitlement to such a payment regardless of whether the relevant construction contract makes provision for progress payments.
(3) The means by which this Act ensures that a person is able to recover a progress payment is by establishing a procedure that involves—
(a) the making of a payment claim by the person claiming payment, and
(b) the provision of a payment schedule by the person by whom the payment is payable, and
(c) the referral of any disputed claim to an adjudicator for determination, and
(d) the payment of the progress payment so determined.
(4) It is intended that this Act does not limit—
(a) any other entitlement that a claimant may have under a construction contract, or
(b) any other remedy that a claimant may have for recovering any such other entitlement.
A “progress payment” is defined in s 4(1) and the concept of “construction work” is defined in s 5(1) so as to include the construction, alteration, extension and demolition of buildings or structures.
Section 7 is an important provision which provides for the scope of the SOP Act and identifies various exceptions to its application, including the exception relied upon by the first adjudicator here in concluding that he lacked jurisdiction. It relevantly provides:
7 Application of Act
(1) Subject to this section, this Act applies to any construction contract, whether written or oral, or partly written and partly oral, and so applies even if the contract is expressed to be governed by the law of a jurisdiction other than New South Wales.
(2) This Act does not apply to—
…
(c) a construction contract under which it is agreed that the consideration payable for construction work carried out under the contract, or for related goods and services supplied under the contract, is to be calculated otherwise than by reference to the value of the work carried out or the value of the goods and services supplied.
Part 2 addresses “Rights to progress payments”. Relevantly, s 8(1) provides that a person who, under a construction contract, has undertaken to carry out construction work or to supply related goods and services is entitled to receive a progress payment. The amount of such entitlement is calculated in accordance with the terms of the contract or, where there is no express provision in the contract for that calculation, the amount calculated on the basis of the value of construction work carried out or undertaken to be carried out under the contract (s 9).
Part 3 of the Act provides for the procedure referred to in s 3(3) for recovering progress payments. Section 13(1) provides:
13 Payment claims
(1) A person referred to in section 8 who is or who claims to be entitled to a progress payment (the claimant) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment.
…
A payment claim must indicate the amount of the progress payment that the claimant claims to be due (s 13(2)(b)). A payment claim may be served only within either the period determined by or in accordance with the contract, or the period of 12 months after the construction work to which the claim relates was last carried out, whichever is the later (s 13(4)).
Section 14 deals with the requirements of a payment schedule to be served by the respondent in reply to a payment claim.
Sections 15 and 16 create significant statutory consequences for a respondent who does not provide a payment schedule within the specified time or who fails to pay the claimed amount on or before the due date. One such consequence is that the amount of the payment claim is recoverable as a debt in a court of competent jurisdiction or, alternatively, the claimant can make an adjudication application under s 17. Section 17 provides:
17 Adjudication applications
(1) A claimant may apply for adjudication of a payment claim (an adjudication application) if—
(a) the respondent provides a payment schedule under Division 1 but—
(i) the scheduled amount indicated in the payment schedule is less than the claimed amount indicated in the payment claim, or
(ii) the respondent fails to pay the whole or any part of the scheduled amount to the claimant by the due date for payment of the amount, or
(b) the respondent fails to provide a payment schedule to the claimant under Division 1 and fails to pay the whole or any part of the claimed amount by the due date for payment of the amount.
(2) An adjudication application to which subsection (1)(b) applies cannot be made unless—
(a) the claimant has served written notice on the respondent, within the period of 20 business days immediately following the due date for payment, of the claimant’s intention to apply for adjudication of the payment claim, and
(b) the respondent has been given an opportunity to provide a payment schedule to the claimant within 5 business days after receiving the claimant’s notice.
(3) An adjudication application—
(a) must be in writing, and
(b) must be made to an authorised nominating authority chosen by the claimant, and
(c) in the case of an application under subsection (1)(a)(i)—must be made within 10 business days after the claimant receives the payment schedule, and
(d) in the case of an application under subsection (1)(a)(ii)—must be made within 20 business days after the due date for payment, and
(e) in the case of an application under subsection (1)(b)—must be made within 10 business days after the end of the 5-day period referred to in subsection (2)(b), and
(f) must identify the payment claim and the payment schedule (if any) to which it relates, and
(g) must be accompanied by such application fee (if any) as may be determined by the authorised nominating authority, and
(h) may contain such submissions relevant to the application as the claimant chooses to include.
(4) The amount of any such application fee must not exceed the amount (if any) determined by the Minister.
(5) A copy of an adjudication application must be served on the respondent concerned.
(6) It is the duty of the authorised nominating authority to which an adjudication application is made to refer the application to an adjudicator (being a person who is eligible to be an adjudicator as referred to in section 18) as soon as practicable.
17A Withdrawal of application
(1) A claimant may withdraw an adjudication application at any time—
(a) before an adjudicator is appointed to determine the application, or
(b) if an adjudicator has been appointed—before the application is determined,
by serving written notice of the withdrawal on the respondent and on the authorised nominating authority or the adjudicator (if any).
(2) If an adjudicator has been appointed to determine an adjudication application, the withdrawal of the application does not have effect if any other party to the construction contract concerned objects to the withdrawal and, in the opinion of the adjudicator, it is in the interests of justice to uphold the objection.
Under s 19, if an authorised nominating authority refers an adjudication application to a particular adjudicator, the adjudicator may accept the adjudication application and, on such acceptance, the adjudicator is taken to have been appointed to “determine the application”.
A respondent is permitted by s 20 to lodge an “adjudication response” to a claimant’s adjudication application. It provides:
20 Adjudication responses
(1) Subject to subsection (2A), the respondent may lodge with the adjudicator a response to the claimant’s adjudication application (the adjudication response) at any time within—
(a) 5 business days after receiving a copy of the application, or
(b) 2 business days after receiving notice of an adjudicator’s acceptance of the application,
whichever time expires later.
(2) The adjudication response—
(a) must be in writing, and
(b) must identify the adjudication application to which it relates, and
(c) may contain such submissions relevant to the response as the respondent chooses to include.
(2A) The respondent may lodge an adjudication response only if the respondent has provided a payment schedule to the claimant within the time specified in section 14(4) or 17(2)(b).
(2B) The respondent cannot include in the adjudication response any reasons for withholding payment unless those reasons have already been included in the payment schedule provided to the claimant.
(3) A copy of the adjudication response must be served on the claimant.
21 Adjudication procedures
(1) An adjudicator is not to determine an adjudication application until after the end of the period within which the respondent may lodge an adjudication response.
(2) An adjudicator is not to consider an adjudication response unless it was made before the end of the period within which the respondent may lodge such a response.
(3) Subject to subsections (1) and (2), an adjudicator is to determine an adjudication application as expeditiously as possible and, in any case—
(a) within 10 business days after—
(i) if the respondent is entitled to lodge an adjudication response under section 20—the date on which the respondent lodges the response or, if a response is not lodged, the end of the period within which the respondent was entitled to lodge a response, or
(ii) in any other case—the date on which notice of the adjudicator’s acceptance of the application is served on the claimant and the respondent, or
(b) within such further time as the claimant and the respondent may agree.
(4) For the purposes of any proceedings conducted to determine an adjudication application, an adjudicator—
(a) may request further written submissions from either party and must give the other party an opportunity to comment on those submissions, and
(b) may set deadlines for further submissions and comments by the parties, and
(c) may call a conference of the parties, and
(d) may carry out an inspection of any matter to which the claim relates.
…
(5) The adjudicator’s power to determine an adjudication application is not affected by the failure of either or both of the parties to make a submission or comment within time or to comply with the adjudicator’s call for a conference of the parties.
22 Adjudicator’s determination
(1) An adjudicator is to determine—
(a) the amount of the progress payment (if any) to be paid by the respondent to the claimant (the adjudicated amount), and
(b) the date on which any such amount became or becomes payable, and
(c) the rate of interest payable on any such amount.
(2) In determining an adjudication application, the adjudicator is to consider the following matters only—
(a) the provisions of this Act,
(b) the provisions of the construction contract from which the application arose,
(c) the payment claim to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the claimant in support of the claim,
(d) the payment schedule (if any) to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the respondent in support of the schedule,
(e) the results of any inspection carried out by the adjudicator of any matter to which the claim relates.
(3) The adjudicator’s determination must—
(a) be in writing, and
(b) include the reasons for the determination (unless the claimant and the respondent have both requested the adjudicator not to include those reasons in the determination), and
(c) be served by the adjudicator on the claimant and the respondent.
(4) If, in determining an adjudication application, an adjudicator has, in accordance with section 10, determined—
(a) the value of any construction work carried out under a construction contract, or
(b) the value of any related goods and services supplied under a construction contract,
the adjudicator (or any other adjudicator) is, in any subsequent adjudication application that involves the determination of the value of that work or of those goods and services, to give the work (or the goods and services) the same value as that previously determined unless the claimant or respondent satisfies the adjudicator concerned that the value of the work (or the goods and services) has changed since the previous determination.
(5) If the adjudicator’s determination contains—
(a) a clerical mistake, or
(b) an error arising from an accidental slip or omission, or
(c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the determination, or
(d) a defect of form,
the adjudicator may, on the adjudicator’s own initiative or on the application of the claimant or the respondent, correct the determination.
The consequences of the respondent not paying the adjudicated amount are set out in ss 24 and 25. They include steps for obtaining and the filing of a certificate as a judgment for a debt in any court of competent jurisdiction.
Section 26 is another important provision for the purposes of the appeal. It supplements s 17A and provides for particular circumstances in which a claimant can withdraw an application for adjudication and make a new application:
26 Claimant may make new application in certain circumstances
(1) This section applies if—
(a) a claimant fails to receive an adjudicator’s notice of acceptance of an adjudication application within 4 business days after the application is made, or
(b) an adjudicator who accepts an adjudication application fails to determine the application within the time allowed by section 21(3).
(2) In either of those circumstances, the claimant—
(a) may withdraw the application, by notice in writing served on the adjudicator or authorised nominating authority to whom the application was made, and
(b) may make a new adjudication application under section 17.
(3) Despite section 17(3)(c), (d) and (e), a new adjudication application may be made at any time within 5 business days after the claimant becomes entitled to withdraw the previous adjudication application under subsection (2).
(4) This Division applies to a new application referred to in this section in the same way as it applies to an application under section 17.
29 Adjudicator’s fees
…
(4) An adjudicator is not entitled to be paid any fees or expenses in connection with the adjudication of an adjudication application if he or she fails to make a decision on the application (otherwise than because the application is withdrawn or the dispute between the claimant and respondent is resolved) within the time allowed by section 21(3).
(5) Subsection (4) does not apply—
(a) in circumstances in which an adjudicator refuses to communicate his or her decision on an adjudication application until his or her fees and expenses are paid, or
(b) in such other circumstances as may be prescribed by the regulations for the purposes of this section.
32 Effect of Part on civil proceedings
(1) Subject to section 34, nothing in this Part affects any right that a party to a construction contract—
(a) may have under the contract, or
(b) may have under Part 2 in respect of the contract, or
(c) may have apart from this Act in respect of anything done or omitted to be done under the contract.
(2) Nothing done under or for the purposes of this Part affects any civil proceedings arising under a construction contract, whether under this Part or otherwise, except as provided by subsection (3).
(3) In any proceedings before a court or tribunal in relation to any matter arising under a construction contract, the court or tribunal—
(a) must allow for any amount paid to a party to the contract under or for the purposes of this Part in any order or award it makes in those proceedings, and
(b) may make such orders as it considers appropriate for the restitution of any amount so paid, and such other orders as it considers appropriate, having regard to its decision in those proceedings.
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.
This summary of the background facts draws heavily on the primary judgment, noting that senior counsel for the appellant confirmed in oral address that the facts were not disputed.
In around March 2022, representatives of the appellant and the respondent discussed the possibility of jointly developing the respondent’s land. There is no dispute that they reached an agreement and that it was not reduced to writing. But they disagreed as to the terms of the oral agreement. The appellant alleged that the agreement was to construct a mixed-use development on the respondent’s land in Fairfield. The appellant claimed that it was agreed that it would finance the development, which would include 54 residential lots, ground floor retail lots, first floor offices and associated ground floor parking. The appellant claimed that the parties also agreed that it would take all necessary steps to obtain a construction certificate, that the respondent would pay 30% of the costs associated with obtaining that certificate, and that, as payment, the appellant would receive proceeds from the sale of all lots, apart from a few specified lots. The appellant also contended that there was an implied term that if the project did not complete, the respondent would pay it its costs and a reasonable margin.
In contrast, the respondent denied that it ever agreed to pay 30% of the costs associated with obtaining the construction certificate. It also claimed that it was entitled to more parking spaces than alleged by the appellant and it denied the claimed implied term.
Although the appellant carried out some work on the land, a construction certificate was never obtained and the land remains undeveloped.
On 15 May 2025, the appellant lodged an adjudication application under s 17 of the SOP Act, having served on the respondent a payment claim of $3 million plus GST for building works and alleged loss of profit.
On 22 May 2025, the respondent lodged an adjudication response in which it claimed that the appellant was not entitled to any payment in relation to the payment claim. It also submitted that the payment claim was outside the jurisdiction of the SOP Act because the agreement upon which the claim was based fell within the exception in s 7(2)(c).
On 11 June 2025, the first adjudicator issued a 30-page document in the form of a “Determination made under [the SOP Act]”. The Adjudication Determination includes the following information on the coversheet:
Adjudicated Amount Not Applicable – see paragraph 40
Due Date for Payment Not Applicable – see paragraph 40
Rate of Interest Not Applicable – see paragraph 40
In the detailed reasons, the adjudicator explained why he accepted the respondent’s version of the agreement and why it fell within the exception in s 7(2)(c). This was on the basis that he found that the consideration payable was “to be calculated other than by reference to the value of the work carried out or the value of the goods and services supplied”.
In determining which version of the agreement to accept, the adjudicator took into account competing statutory declarations filed on behalf of the parties regarding the terms of the oral agreement. The adjudicator noted that no direct evidence was provided by an accountant, Mr Nicolas Karam, who had acted for the appellant and had been involved in the relevant discussions.
The first adjudicator summarised his conclusions at [39]-[40] of his statement of reasons:
Summary
39. For the reasons set out above, the Act does not apply to the “construction contract” entered into by the parties. As such the Claimant had no entitlement to serve a payment claim under the Act and, as the Claimant had no such entitlement, then I have no jurisdiction to make a determination in relation to the present adjudication application.
ADJUDICATED AMOUNT, DUE DATE FOR PAYMENT AND INTEREST
40. Because I have concluded that the present “construction contract” falls within the exception set out in 7(2)(c) of the Act, it follows that the Respondent is not required to pay any amount to the Claimant in relation to the payment that the Claimant had referred to adjudication. It also follows that as no adjudicated amount is able to be determined and nor can any determinations be made in relation to the due date for payment or the applicable interest rate.
On 20 June 2025, the appellant purported to withdraw its adjudication application and it made a new application to a different nomination body. It claimed that the first adjudicator had not made a “determination” for the purposes of s 22 of the SOP Act, hence no determination had been made in the timeframe permitted under s 26(1)(b). The appellant claimed that it was therefore entitled to make a new application for adjudication under s 26(2).
For the purposes of the second adjudication, the appellant filed a statutory declaration dated 20 June 2025 by Mr Karam, who described his involvement in the project discussions. The appellant also filed another statutory declaration dated 20 June 2025 by its representative, Mr Tannous, who had provided an earlier statutory declaration in the first adjudication.
The respondent took an active role in the second adjudication process, including providing an adjudication response dated 30 June 2025. The respondent submitted there that the first adjudication determination was binding and that the appellant was not empowered to withdraw the first adjudication application and commence a new adjudication process. The respondent denied that Mr Karam’s statutory declaration improved the appellant’s position, but added that, even if it did, this would constitute an abuse of process and create an issue estoppel.
The second adjudicator published his adjudication determination on 14 July 2025. He made a determination in the appellant’s favour in the amount of $1,200,000 after making different findings from the first adjudicator as to both the issue of jurisdiction and the terms of the agreement. He concluded there was no jurisdictional impediment to him completing the new adjudication application because he was satisfied of the following matters:
(a) the construction contract required the appellant to fund the actual construction work; (b) the contract terms required that the respondent meet 30% of the costs of the construction activities; and (c) the requirement for the respondent to part fund work up to the point of the construction certificate meant that the development part of the contract was based on the value of the work carried out, thereby not being captured by the exclusion in s 7(2)(c) of the SOP Act.
By summons filed 17 July 2025, the respondent in the appeal commenced proceedings in the Supreme Court seeking an order in the nature of certiorari quashing the second determination and an order permanently restraining the appellant from taking any steps to register that determination as a judgment or enforce it.
The respondent submitted that the second determination was void and should be quashed because:
(a) it was an abuse of process or the appellant was estopped from relying on the second determination because it was seeking to re-agitate an issue (including the terms of the agreement and the question of jurisdiction) that had already been determined by the first adjudicator; and (b) the first determination was a “determination” for the purposes of the SOP Act, such that the provisions for a second application in s 26 did not apply and the appellant’s second application for adjudication was consequently out of time.
(a) the first determination was a “determination” for the purposes of the SOP Act and which had not been found to be invalid; and (b) accordingly, the second application for adjudication was an abuse of process and the respondent was entitled to the injunctive relief sought by it.
The primary judge’s reasons for concluding that the first determination was a “determination” for purposes of the SOP Act may be summarised as follows.
Her Honour referred to the following authorities: Alucity Architectural Produce Supply Pty Ltd v Australian Solutions Centre [2016] NSWSC 608, Forte Sydney Carlingford Development Pty Ltd v Li [2022] FCA 1499 (Forte First Instance), Forte Sydney Carlingford Development Pty Ltd v Forte Sydney Carlingford Pty Ltd [2024] FCAFC 9 (Forte Appeal) and Olympia Group (NSW) Pty Ltd v Hansen Yuncken Pty Ltd [2011] NSWSC 165.
Her Honour summarised the facts and relevant principles of each of those cases at PJ[18]-[27] before identifying the following principles:
(a) In Alucity at [58], Hammerschlag J (as his Honour then was) noted that s 22(1)(a) requires the adjudicator to determine the amount of the progress payment (if any) to be paid by the respondent to the claimant and that a “determination that no amount is to be paid because the claim is invalid is no less a determination than one which determines that no money is payable for some other reason”. (b) In Olympia Group, Ball J (as his Honour then was) held at [19] that the decision of the adjudicator was not a “determination” contemplated by s 22 SOP Act. Peden J observed that Ball J’s decision was “based on certain facts”, namely, that the adjudicator: (1) was asked to decide the question of jurisdiction before he accepted his nomination; (2) did not wait to receive an adjudication response as required by s 22 of the Act, before deciding he did not have jurisdiction; (3) did not examine the payment claim or payment schedule in arriving at his decision; and (4) simply relied on the fact that the construction site was outside NSW to determine he did not have jurisdiction.
In the present appeal, the appellant relies heavily upon Olympia Group, claiming that the facts there were similar to those here and therefore warranted a similar finding to justify why the first determination was not a “determination” under the SOP Act. Ball J’s reasoning will be further analysed below.
(c) In Forte Appeal, the Full Court distinguished Olympia Group from the facts before it at [90] (emphasis added):
In Olympia Group ... the adjudicator ... considered the question of jurisdiction as a preliminary matter, as he was asked to do, forming a view about the issue on the same day as he accepted his nomination. That is not what happened here. Rather, in contrast, the question of existence of a construction contract and therefore jurisdiction was not raised as a preliminary or threshold issue but in detailed submissions. [The adjudicator] accepted his nomination, he then considered the payment claim, payment schedule and the adjudication response and wrote a lengthy and considered determination having regard to that material.
Those observations are apposite here. Paragraph 35 of the First Determination states “...once [SE Ware] had in its [adjudication response] contended that the Act did not apply to the present construction contact, it was necessary for me to be satisfied as to this threshold jurisdictional issue” (emphasis added). Kwik Flo highlighted the word “threshold” to submit that the current facts required the same result as in Olympia Group. I do not accept that submission.
Here, the adjudicator reached his conclusion about his want of jurisdiction only after considering Kwik Flo’s adjudication application, SE Ware’s adjudication response, and further submissions from Kwik Flo, which the adjudicator had invited. The conclusion was reached in the context of the adjudicator following the process of making a “determination” about the payment claim. The adjudicator did not treat jurisdiction as merely a preliminary or threshold issue, but instead considered the issue towards the end of the substantive reasons about the payment claim. Olympia Group is therefore distinguishable.
The primary judge added that, based on her finding that the first determination was a “determination” for the purposes of the SOP Act, the appellant had no entitlement to withdraw its first application under s 17A and was not entitled to make a new application relying on s 26 of the SOP Act.
Turning now to the issue whether it was an abuse of process for the appellant to seek, obtain and enforce a determination by the second adjudicator, the primary judge’s reasons for upholding the respondent’s claim in this regard are summarised as follows.
Her Honour explained that abuse of process in the security of payment context can manifest in two ways: (1) a party can abuse legislative processes by purporting to re-agitate a claim which had already been decided; or (2) abuse of the processes of the Court by attempting to enter judgment with respect to a second or subsequent application.
As to the first class of case, being an abuse of legislative processes, her Honour noted that the respondent did not seek a stay of the second adjudication process. Indeed, it actively participated in the process and it was not until the second determination was made that the respondent sought certiorari and other relief. Her Honour stated at PJ[40] that the respondent did not contend that the second determination was invalidated by jurisdictional error but it claimed nevertheless that there was an abuse of process.
At PJ[41], her Honour noted that, ordinarily, relief for an abuse of process or issue estoppel is a stay or dismissal of the process in question. Her Honour also noted that the respondent did not refer to any authority where a court has found that an adjudication ought to be quashed because it was an abuse of process or because there was an issue estoppel.
The primary judge ultimately concluded that, in circumstances where the first determination was a valid determination for the purposes of the SOP Act, the appropriate relief was an injunction restraining the appellant from taking steps to register or enforce the second determination.
The two grounds of appeal are as follows:
The primary judge erred (at PJ[30]) in finding that the "First Determination" was a determination for the purposes of the SOP Act.
The primary judge erred at PJ[42] in finding that it would be an abuse of process for the appellant to attempt to enforce the "Second Determination" as a judgment and, therefore (at PJ[47]), in ordering that the appellant be restrained from taking steps to register or enforce it.
In brief, the appellant’s primary submissions in support of these grounds are as follows. It contends that the primary judge erred in concluding that the first determination was a “determination” for the purposes of the SOP Act. It claims that the primary judge erred in distinguishing Olympia Group and that her Honour’s analysis was wrong in the following three respects:
(a) It was wrong to conclude that Ball J’s decision was based on certain facts rather than matters of principle. (b) The primary judge should not have applied Forte Appeal because that decision was clearly wrong in distinguishing Olympia Group on the basis of an allegedly different factual position, rather than applying principle. (c) The primary judge erred in viewing the decision by the first adjudicator as the product of substantive consideration of the materials before him, rather than viewing it as a decision on the threshold issue of jurisdiction which did not amount to a “determination”.
In support of ground 2 of the appeal, the appellant submits that it cannot be an abuse of process to enforce the second determination which is not otherwise said to be invalid and that to restrain enforcement is against the policy and purposes of the SOP Act, including limiting the opportunities for judicial intervention. While the appellant acknowledges that a party aggrieved by an adjudication process could seek and obtain judicial relief on the basis of abuse of process before a determination is made, once a determination had been issued “the time for seeking such restraint is over and the parties’ (sic) are left to the narrow courses of challenge available in light of the policy and purpose of the Act”. The appellant emphasises that the respondent did not seek to restrain the second adjudication and instead “fully engaged with the process”. The appellant also submits that the cases relied upon by the primary judge in support of her findings on abuse of process are distinguishable and are of no assistance.
The appellant further submits that the same issues were not re-agitated in the first and second adjudicative process.
To avoid adding unduly to the length of these reasons, I will not separately summarise the respondent’s primary submissions. They are broadly reflected in my reasons below for dismissing the appeal.
The resolution of this ground essentially involves an exercise of statutory construction. It is well settled that this exercise is to be conducted with appropriate regard to text, context and purpose, with the text being considered at the same time as context and purpose (see, for example, SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] per Kiefel CJ, Nettle and Gordon JJ and Ravbar v Commonwealth of Australia (2025) 99 ALJR 1000; [2025] HCA 25 at [184] per Edelman J). The importance of viewing the text together with the context and purpose is important in the present appeal. That is because, if the text is viewed in isolation and attention is given only to the explicit terms of the text it might appear that there is something to be said for the appellant’s construction. In particular, the appellant contends that the matters specified in s 22 which an adjudicator “is to determine” do not refer explicitly to any conclusion reached by the adjudicator on the issue of jurisdiction.
In its outline of written submissions at [28], the appellant submitted that “what is a ‘determination’ under the Act must be answered by first having regard to the terms of the Act” (emphasis added).
For the following reasons, I do not accept the appellant’s construction. I am not persuaded that the construction adopted and applied by the primary judge is incorrect.
First, I consider that the appellant has misstated the correct approach to the task of statutory construction by claiming that the question of what is a determination for the purpose of the SOP Act must be assessed by first having regard to the terms of the Act and, in effect, deferring to a later stage considerations of context and purpose. Those broader considerations need to be brought to account when considering the text, not at some later point in time.
Thus, when considering the text, it is relevant to also have regard to statutory purpose and policy. An important aspect of the policy of the SOP Act was pithily summarised by Macfarlan JA in Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190; [2009] NSWCA 69 at [70] (Handley AJA agreeing):
… The view that the claimant once disappointed by an adjudicator can seek a different determination from another, or indeed from a succession of others, until a favourable decision is reached would in my view conflict with the policy of the Act to render adjudicators’ determinations final on issues which they resolved, subject only to provisions of the Act conferring limited rights of correction of determinations.
… I also agree that the Act as a whole generally manifests an intention to prevent repetitious reagitation of the same issues. The primary mechanism for the effectuation of that intention would appear to be ss 13(5) and 22(4). The former is sufficient to deal with the present controversy. I would leave to another occasion, should it be necessary, the consideration of principles of estoppel to prevent any apparently abusive operation of the Act not specifically covered by ss 13(5) and 22(4).
Indeed, it is inevitable, and entirely forgivable, that the adjudicator who need not be legally qualified and who often needs to rule on dozens or hundreds of individual disputed items, without the benefit of an oral hearing and often without the benefit of any discipline in the length of submissions or the volume of material provided, in ten business days, will make material mistakes. This is an obvious consequence of the regime. As the High Court said in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4, material mistakes, whether of fact or law, do not without more lead to the determination being set aside, for that would undercut the mechanism for a swift extra-curial means of securing cashflow.
It is important, of course, not to lose sight of the limitations in some cases of a purposive approach (see, for example, Carr v State of Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5] per Gleeson CJ). But the appellant’s narrow construction of what is a “determination” for the purposes of the SOP Act sits uncomfortably with the clear general policy of preventing repetitive re-agitation of the same issues. The appellant’s construction has the effect of encouraging a claimant who is dissatisfied with an adjudicator’s ruling on jurisdiction to withdraw the initial application for adjudication, even where it is not tainted by jurisdictional error, and lodge a new application for adjudication with a view to another adjudicator accepting the application and ultimately ruling in the claimant’s favour on jurisdiction and on the substantive payment claim, as occurred here.
The broader construction of “determination”, as adopted by the primary judge, is consistent with the legislative policy described above. That construction does not mean that a claimant who is dissatisfied with an adjudicator’s ruling on jurisdiction is precluded from taking advantage of the statutory scheme. If the ruling is affected by jurisdictional error, the clamant is entitled to seek timely judicial review in the Supreme Court and, if the ruling is affected by jurisdictional error, it may be set aside or declared void. The claimant would, in those circumstances, be entitled to take the steps described in s 26 of the SOP Act. Alternatively, if the ruling is affected by jurisdictional error, the claimant may take the steps in s 26 without first obtaining a judicial review remedy on the basis that the claimant is confident that the ruling is void for jurisdictional error, as referred to in Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWCA 172. This course may prompt the respondent to take appropriate legal action to restrain the second adjudication on the basis of abuse of process if the true legal position is that the ruling is not vitiated by jurisdictional error. Importantly, the appellant in the present proceedings has never asserted that the first adjudicator’s decision was void for jurisdictional error.
Secondly, the structure of the SOP Act provides important context for the task of statutory construction. In particular, it is important to note that the making of a determination by an adjudicator is the culmination of various preceding statutory steps. In Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 at [53], Hodgson JA (Mason P and Giles JA agreeing) stated that there are at least the following five “basic and essential requirements” or “conditions laid down for the existence of an adjudicator’s determination”:
What then are the conditions laid down for the existence of an adjudicator’s determination? The basic and essential requirements appear to include the following:
- The existence of a construction contract between the claimant and the respondent, to which the Act applies (ss 7 and 8).
2. The service by the claimant on the respondent of a payment claim (s 13).
- The making of an adjudication application by the claimant to an authorised nominating authority (s 17).
- The reference of the application to an eligible adjudicator, who accepts the application (ss 18 and 19).
- The determination by the adjudicator of this application (ss 19(2) and 21(5)), by determining the amount of the progress payment, the date on which it becomes or became due and the rate of interest payable (ss 22(1)) and the issue of a determination in writing (ss 22(3)(a)).
Other aspects of Brodyn were overruled in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 (at [32] per Spigelman CJ; at [108] per Basten JA and at [287] per McDougall J). I consider that what Hodgson JA said at [53] remains good law. It is clear from the language of the second sentence of [53] that Hodgson JA did not intend the five matters described by him there to be an exhaustive list of the basic and essential requirements for the existence of a determination.
The significance of these structural matters is that the legislation creates various steps which precede the making of a determination of an application for adjudication. For the purposes of resolving the present appeal, it is not necessary to provide an exhaustive list of all the steps or requirements which provide the basis for the existence of an adjudicator’s determination. It is sufficient to state that the steps or prohibitions in ss 21(1) and (2) are fundamental requirements. This is reflected in the unambiguous terminology in those provisions which expressly prohibit an adjudicator from determining an adjudication application unless the requirements in those two provisions are observed. Thus, an adjudicator is prohibited from determining an adjudication determination until after the end of the period for an adjudication response to be lodged and may only consider a response which has been lodged within the specified period.
Finally, the matters which the adjudicator is to determine are set out in s 22(1) and, in so doing, the adjudicator is confined to considering only the matters specified in s 22(2).
The structure of the statutory scheme indicates that a determination of an adjudication application for the purpose of the SOP Act is to be made only after various procedural steps have been observed.
Applying that analysis to the circumstances here, it is notable that the first adjudicator’s decision (using a neutral term) was made only after the relevant procedural steps had been observed. This included not making the determination until after the end of the period in which the respondent could (and in fact did) lodge an adjudication response. In that adjudication response, the respondent asserted that the claimant was not responsible for any progress payment and in addition, claimed that the SOP Act did not apply to the particular contract. Both parties provided evidence and submissions in support of their respective positions on both the substance of the dispute and the issue of jurisdiction. These materials were taken into account by the adjudicator before concluding that he lacked jurisdiction. This conclusion was stated in the context of a formal determination made by the adjudicator, including with particular reference to each of the matters described in s 22(1).
The fact that the first adjudicator purported to make a formal determination for the purposes of the SOP Act, including determining each of the matters specified in s 22(1) does not mean that it constitutes a determination in law. What is significant, however, is that the determination dated 11 June 2025 was made consistently with the statutory structure described above, including observance of the various procedural steps preceding the making of a determination.
Having a judicially enforceable duty to comply with the limits of its own jurisdiction, a court or a non-court tribunal must have power to take steps needed to ensure its own compliance with that duty. If not expressed in the legislation establishing the court or non-court tribunal or in the legislation conferring jurisdiction on it, that power is necessarily implied on the basis that “everything which is incidental to the main purpose of a power is contained within the power itself”.
The power which a court or a non-court tribunal necessarily has to ensure that it remains within the limits of its jurisdiction is not of a nature that is inherently judicial. The reason is that the exercise of the power is incapable of quelling a controversy between parties about existing legal rights. Nor is it inherently non-judicial. Rather, the power takes its nature from the nature of the power to which it is incidental: “[t]he nature of the final act determines the nature of the previous inquiry”.
A court in which judicial power is invested therefore “has jurisdiction to determine — and to determine judicially — whether it has the jurisdiction to entertain a particular application or to make a particular order”. The court, in other words, has “jurisdiction to decide its own jurisdiction” in the performance of which it exercises judicial power.
A tribunal that is not a court and that is invested with non-judicial power correspondingly has authority — in the exercise of non-judicial power — to “make up its mind” or “‘decide’ in the sense of forming an opinion” about the limits of its own jurisdiction “for the purpose of determining its own action”. The authority is not to “reach a conclusion having legal effect” but to form an opinion for the purpose of “moulding its conduct to accord with the law”.
Fourthly, the circumstances here in which the first adjudicator made his decision (to use a neutral term) is to be distinguished from the position in Olympia Group, upon which the appellant heavily relies. In Olympia Group, there was an agreement to refurbish a building in connection with HMAS Creswell at Jervis Bay, which is part of the ACT. Olympia Group made an adjudication application. Very shortly thereafter, and before lodging an adjudication response, the respondent claimed that there was no jurisdiction under s 7(4) of the SOP Act because the construction contract dealt with construction work carried outside NSW. An adjudicator was subsequently appointed. And on the next day the parties were informed that the adjudicator had determined that the SOP Act did not apply to the construction contract for the reasons set out above.
The contractor (Olympia Group) promptly brought legal proceedings in which it challenged the adjudicator’s ruling on jurisdiction. It argued that, because the adjudicator had failed to determine its claim within the time allowed by s 21(3), it was entitled under s 26(2) to withdraw its original adjudication application and make a new application under s 17.
Subsequently, by an amendment, Olympia Group also contended that if an adjudicator had made a determination under s 22, the determination was void.
Ball J considered whether the adjudicator had determined the payment claim. Olympia Group argued that no such determination had been made because the adjudicator’s ruling on jurisdiction was not a determination of the payment claim, an argument which was said to be supported by the fact that the ruling on jurisdiction was made before the respondent had lodged its adjudication response and before the time for it to do so had expired.
In contrast, the respondent submitted that the adjudicator’s decision was a determination, pointing to the fact that the adjudicator had found in substance that the amount in the payment claim was nil because the payment claim was not validly made under the SOP Act. Ball J rejected those submissions for reasons which are set out at [14]:
I do not accept [the respondent’s] submissions. In my opinion, the adjudicator’s decision was not a determination of the type contemplated by s 22 of the SOP Act. Rather, it was a decision whether the SOP Act applied to the claim made by Olympia having regard to where the relevant construction work was carried out. The adjudicator had to make a decision about that question because it was an essential precondition to the exercise of the powers granted to him by the Act. But is does not follow that, in making that decision, he was exercising a power to make a determination of the type required by s 22. As Spigelman CJ explained in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 ; (2010) 272 ALR 750 at [36]:
The issue to be determined is whether the adjudicator had jurisdiction to determine an “application” which had been made without compliance with the mandatory (in a negative sense) terminology of s 17(2) [which relevantly states in para (a) that an adjudication application cannot be made unless the claimant has notified the respondent within 20 business days immediately following the due date for payment of the claimant’s intention to apply for adjudication of its claim]. The issue is not, contrary to some of the submissions made, whether the adjudicator had jurisdiction to determine that s 17(2)(a) had been complied with. That section is not addressed to the adjudicator and is not a matter which he is directed to “determine” within s 22(1) of the Act. It may be that it is a matter which he must “consider” as one of the “provisions of the Act” within s 22(2)(a). However, that section confers no power to determine the issue.
… the question whether there was a construction contract to which the Act applies — that is, a construction contract which did not involve construction work carried out outside New South Wales or related goods and services supplied in respect of construction work of that type — is a question that goes to whether the adjudicator can exercise jurisdiction. It is not a question the determination of which forms part of the exercise of that jurisdiction.
In my opinion, the conclusion that the adjudicator did not make a determination under s 22 of the SOP Act is supported by what the adjudicator actually did. He was asked to make a decision on the question of jurisdiction before he accepted his nomination. Faced with that request, he accepted his nomination but, on the same day, caused ASC to write to the parties to say that he accepted that he did not have jurisdiction. He did not wait for an adjudication response as he was required to do before making a determination under s 22. Nor does it appear that he examined the payment claim or the payment schedule in arriving at his decision. Rather, what he relied on was the fact that the construction site was located outside New South Wales. It seems clear from those facts that the adjudicator — correctly, in my view — was not purporting to make a determination under s 22.
In follows, in this case, that Olympia is entitled under s 26(2) of the Act to make a new adjudication application under s 17. However, the court would not permit it to do so unless the court was satisfied that an adjudicator had jurisdiction to determine the claim.
It may be noted that Ball J considered that a court would not permit a new adjudication determination to be made under s 17 (relying on s 26(2) of the SOP Act), unless the Court was satisfied that an adjudicator did have jurisdiction to determine an adjudication application.
I consider that the appellant’s reliance on Olympia Group is misguided. The circumstances there are quite different from those here. Critically, the adjudicator’s ruling on jurisdiction in Olympia Group was not made in conformity with the various procedural steps outlined above. Indeed, the ruling was made prior to the expiration of the period in which the respondent could file an adjudication response.
It is worth repeating that an adjudicator is directed in unambiguous terms by s 21(1) not to determine an adjudication application until after the end of the period within which the respondent may lodge an adjudication response. In those circumstances, it is unsurprising that Ball J concluded that the adjudicator’s ruling on jurisdiction was not a “determination” for the purposes of the SOP Act.
This is also the basis upon which Olympia Group was distinguished in Forte Appeal. The Full Court there refused leave to appeal from Stewart J’s decision in Forte First Instance. In that case, after the claimant had filed an adjudication application and the respondent had lodged its adjudication response, the adjudicator issued a decision finding that the agreement was not a construction contract within the meaning of the ACT’s security of payment legislation, and alternatively, was exempt by reason of the ACT equivalent to s 7 of the SOP Act. The claimant then purported to withdraw its adjudication application and resubmit it. The respondent sought an urgent interlocutory injunction restraining the adjudication nominating body from referring the second application to an adjudicator for adjudication under s 17(6). The respondent then withdrew the second application and made a third application to a different nominating body. Stewart J granted an interlocutory injunction, finding at [35] that the first adjudicator’s decision was a valid determination within the meaning of the SOP Act.
In Forte Appeal, the Full Court considered whether the first adjudicator’s finding that he lacked jurisdiction to determine the payment claim was a determination for the purposes of s 22 of the Act. The Court noted at [81] that “the parties joined issue on the question as to whether there was a construction contract” and that the respondent had provided an adjudication response in which it asserted that the arrangements between the parties did not constitute a construction contract for the purposes of the ACT legislation. The Full Court then addressed Ball J’s decision in Olympia Group and concluded it was distinguishable.
In Olympia Group, as Ball J found to be the case, the adjudicator did not await an adjudication response nor apparently did he examine the payment claim or payment schedule. He considered the question of jurisdiction as a preliminary matter, as he was asked to do, forming a view about the issue on the same day as he accepted his nomination. That is not what happened here. Rather, in contrast, the question of existence of a construction contract and therefore jurisdiction was not raised as a preliminary or threshold issue but in detailed submissions. Mr Tozer accepted his nomination, he then considered the payment claim, payment schedule and the adjudication response and wrote a lengthy and considered determination having regard to that material.
Mr Tozer’s determination was a determination for the purposes of s 22 of the SOP Act. As Forte Sydney submits, a claimant cannot determine for itself whether an adjudication application is affected by jurisdictional error and thus void or invalid and to be ignored. That is a question for a court on an application for judicial review. While judicial review was and is available to FSCD to challenge Mr Tozer’s adjudication determination on the basis that he committed a jurisdictional error, it has not pursued that course. Instead, despite the question of validity for jurisdictional error being one for the courts to determine, FSCD purported to withdraw its First Application and to make the Second Application and eventually the Third Application. In other words, it determined for itself whether Mr Tozer’s determination was infected with jurisdictional error and thus not a valid determination. That was not a matter for FSCD.
I respectfully agree broadly with that reasoning save that I would prefer to describe the determination in that case as a determination for the purposes of the SOP Act generally and not s 22 specifically. I reject the appellant’s submission that the Full Court’s decision in the Forte Appeal was wrong, let alone plainly wrong, such that it should not be followed (see Mustac v Medical Board of Western Australia [2007] WASCA 128 at [38] per Martin CJ, Wheeler and Buss JJA agreeing and the helpful review of the caselaw regarding judicial comity and precedent by Chen J in Comino v Kremetis (2023) NSWLR 224; [2023] NSWSC 23 at [61]-[63]).
I also reject the appellant’s contention that Forte Appeal should not be followed because it turns not on any principle but rather on the happenstance of the timing of a ruling on jurisdiction. I consider that the principal basis underlying Forte Appeal lies in the timing of any such ruling when assessed by reference to the various procedural steps in the statutory scheme, as outlined above.
For the following reasons, I also reject any submission that this analysis is inconsistent with this Court’s decision in Parrwood. That case also involved decisions by two different adjudicators. In the first decision, the adjudicator (Mr O’Brien) ruled that he had jurisdiction to determine the first adjudication application. But he determined that “No amount” was payable as the claimant had no entitlement to be paid any monies because the requirement in cl 39 of the contract (which related to the respondent’s right to suspend payment) had not been observed. Subsequently, the claimant purported to withdraw the first adjudication application and made a new application to a different nominating body which nominated another adjudicator (Ms Durham) to adjudicate the same payment claim. Ms Durham proceeded to determine the second adjudication amount after finding that Mr O’Brien failed to perform his statutory function in not determining the amount of the progress payment.
Proceedings were brought in the Supreme Court, involving both a summons and a cross-summons. The respective parties sought relief that either the first or the second determinations were void. The primary judge held that Mr O’Brien’s determination was void for jurisdictional error.
The respondent to the payment claim appealed, arguing that any error by Mr O’Brien did not amount to a jurisdictional error and that, alternatively, even if his determination was void so also was that of Ms Durham. This was because the claimant had lodged the second adjudication determination without first obtaining declaratory relief that Mr O’Brien’s determination was void. This was said to involve a binding election or an abuse of process on the part of the claimant.
The appeal was dismissed. It was held that there was “a clear case” of jurisdictional error by Mr O’Brien. He was not entitled to ignore the command in s 22(1)(a) of the SOP Act to determine the amount of the progress payment (if any) because of his views regarding the operation of cl 39 of the contract.
It is sufficient for present purposes to rest our decision on the absence of any obligation upon Trinity to approach a court before applying for the second adjudication. It would be highly unusual if unresolved claims as to persons’ rights in any way prevented the application of statute, especially where the person who enjoyed the statutory entitlement rightly contended that the adjudication was void. There was thus no choice facing Trinity between inconsistent rights and no scope for an election to be made. Still less was there an abuse of process. After all, the premise of this ground is that the first adjudication was void; how can there be an abuse of process in applying for a second adjudication in those circumstances?
As the respondent correctly pointed out, the primary judge granted injunctive relief in respect of the second determination not because of any error on the part of the second adjudicator but rather because of the appellant’s conduct which was considered to be an abuse of process.
Neither party identified any previous authority which is precisely on point. I accept the respondent’s submission, however, that the following reasoning of Stewart J in Forte First Instance at [39]-[40] supports Peden J’s reasoning on this issue (emphasis added):
There is a further consideration, which is that it is in my view an abuse of the procedures of the Act for the Developer to seek to re-agitate a claim which has already been decided. Indeed, two adjudicators, Mr Wood and Mr Tozer, have each decided that the Developer is not party to a “construction contract” with the Owner and that the contended-for contract or arrangement is in any event relevantly exempted from the application of the Act. It may be, as submitted by the Developer in reliance on NSW Netball Association Ltd v Probuild Construction (Aust) Pty Ltd [2015] NSWSC 1339 at [49] and Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWCA 172 at [37]–[43], that a determination vitiated by jurisdictional error is no determination at all and can be ignored. However, that does not mean that the repetitious use of the Act by resubmitting the same payment claim to successive adjudicators in the hope of a favourable outcome is not an abuse of the processes of the Act. See Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd **[2022] ACTCA 42 at [92]–[**94] per Lee J (Elkaim J agreeing).
As observed by Kennett J in Harlech (at [16]), the doctrine of abuse of process has been invoked by single judges in the Supreme Court of NSW in granting injunctive relief to restrain the pursuit of repetitious claims under the Act: Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd [2009] NSWSC 416 (Rein J); University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635 (Hammerschlag J); Urban Traders v Paul Michael [2009] NSWSC 1072 (McDougall J). It is well-established that the Act as a whole generally manifests an intention to prevent repetitious re-agitation of the same issues: Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69; 74 NSWLR 190 at [2] (Allsop P) and [70] (Macfarlan JA, Allsop P and Handley AJA agreeing).
Although Stewart J’s observations were made in the context where the respondent to the payment claim sought urgent interlocutory relief while the adjudication was ongoing, I consider that they have a wider application.
Stewart J’s observations regarding abuse of process were upheld in Forte Appeal. It is desirable to set out [98]-[100]:
The authorities establish that the SOP Act was not intended to permit repetitious use of the adjudication process for which it provides to require an adjudicator or successive adjudicators to execute the same statutory task in respect of the same claim on successive occasions: see for example Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [2] and [70] (Allsop P). The primary judge referred to Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd [2022] ACTCA 42 at [16] where Kennett J observed that the doctrine of abuse of process has been invoked by single judges in New South Wales in granting injunctive relief to restrain the pursuit of repetitious claims under the SOP Act, citing three instances.
FSCD states, without referring to any authority, that the doctrine of abuse of the processes of the SOP Act cannot operate in relation to a ruling on jurisdiction, attempting to distinguish the cases referred to by the primary judge which it said only involved repetitious re-agitation of matters within an adjudicator’s jurisdiction. As observed at [92] above, there is authority that a determination under the SOP Act which may be affected by jurisdictional error is not necessarily void.
The doctrine operates, and the primary judge’s finding was, in relation to the repetitious use of the SOP Act to adjudicate the same claim. That is a claim based on the same arrangement or contract which Mr Tozer, and before him Mr Wood, found not to be a construction contract for the purposes of the SOP Act. FSCD’s submission that it did not submit the same claim is rejected. That submission focusses on the claims that were submitted to Mr Wood and Mr Tozer, ostensibly claiming different amounts. However, Forte Sydney’s application was concerned with the First Application, Mr Tozer’s adjudication determination and the Third Application.
I reject the appellant’s contention that the first and second adjudication processes did not involve a re-agitation of the same issues. The question of jurisdiction was at the forefront of both applications. The fact that the appellant adduced additional evidence on this issue for the purposes of the second adjudication application does not mean that the same issue was not re-agitated. On the contrary, the issue of jurisdiction was re-agitated on the basis of different supporting evidence. The clear policy of the SOP Act should not be circumvented by the device of lodging a new application in respect of the same payment claim and providing supplementing evidence which could have been adduced on the first occasion.
The following observations of Stevenson J in Ku-Ring-Gai Council v Ichor Constructions Pty Ltd [2014] NSWSC 1534 at [53] are apposite here:
However, this case involves more than a mere repetition of a claim earlier made. The reason Ichor is repeating its claim before the Second Adjudicator is that it failed to establish the same claim before the First Adjudicator because it deployed evidence inadequate to the task. The Council resisted the First Adjudication Application on the basis of the material then deployed by Ichor in support of it. The First Adjudicator drew attention to the shortcomings in that evidence. Ichor is now making a second attempt to prove its case by supplementing that material with further evidence that, according to its description in the Second Adjudication Application, seeks to overcome the particular problems identified by the First Adjudicator. In effect, Ichor has used the First Adjudicator’s observations as an advice on evidence and is now making a second attempt to prove the same case and requiring the council, for the second time, to meet it. This is in my opinion an abuse of process. It is akin to a party, having read a judge’s reasons for rejecting its claim for want of evidence, seeking to reopen to re-agitate the issue and to make good the identified shortcomings in the evidence.
To say there is no abuse because the second determination did more, it considered the merits the substance, is really only, in my respectful submission to beg the question. It went further, or the second adjudication went further, precisely because the appellant brought the second adjudication application and in so doing alleged a different contract based on different evidence which, in its own words in written submissions anticipatorily of the arguments to be raised by the respondent in its adjudication response and thus got past the jurisdictional issue on which it had previously lost.
It could only anticipate those arguments precisely because it had already seen them in the earlier adjudication process, specifically the earlier adjudication response. That, in my respectful submission, bespeaks an abuse of process, again, whether of the act or of the Court or of both and that ultimately should be dispositive of the second ground of appeal …
I do not accept the appellant’s submission that the primary judge erred in concluding that there was an abuse of process in circumstances where both parties actively and voluntarily engaged in the second adjudication process. At all relevant times, the respondent made clear that it viewed the second process as an abuse of process. In effect, it reserved its right to pursue that claim in the event that the second adjudicator disagreed.
While some aspects of the legislative policy might suggest that a party who considers that a second or further adjudication application constitutes an abuse of process should seek to restrain the process while it is ongoing, there is also something to be said in favour of discouraging the parties from seeking judicial intervention until the adjudication processes have concluded.
In my respectful opinion, no error had been established in respect of the primary judge’s reasoning or conclusion on the question of abuse of process. It might be noted, however, that it is difficult to reconcile what her Honour said at PJ[43] (i.e. that the second determination should be restrained even if the first determination was void for jurisdictional error) with the statement of this Court in Parrwood at [45]. As the appellant correctly pointed out, however, this point does not strictly arise because the primary judge’s remarks on this matter were merely obiter.
For these reasons, I propose that the appeal be dismissed, with costs.
PRICE AJA: I agree with Griffiths AJA.
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Correction of formatting of [9]-[10]
Kwik Flo Pty Ltd
SE Ware Street Dev Pty Ltd [2026] NSWCA 9
(2004) 61 NSWLR 421
(2007) 232 CLR 138
(2023) 112 NSWLR 225
(2010) 78 NSWLR 393
(2022) 276 CLR 216
(2009) 74 NSWLR 190
(2025) 99 ALJR 1000
(2017) 262 CLR 362
(2016) 260 CLR 340
(2018) 264 CLR 1
(2010) 272 ALR 750
Appeal dismissed with costs. The primary judgment's relief restraining Kwik Flo from taking steps to register or enforce the second adjudication determination was not disturbed [109].
Thirdly, I do not attach any particular significance to the fact that a decision on jurisdiction is not included as one of the matters for an adjudicator to determine in s 22(1) (see at [21] above). That is because the proper construction of the SOP Act should take account of the general principle that a statutory tribunal or other non-court statutory body (such as an adjudicator) has an incidental power to form an opinion on whether there is jurisdiction or authority to deal with a matter. The following observations of the High Court in Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 at [21]-[24] are apposite (footnotes omitted):
It is well to set out the Full Court’s reasons at [90]-[91]:
On the question of whether the claimant was precluded from relying on Ms Durham’s determination, the Court held that, while it was open for the claimant to have sought a court remedy that Mr O’Brien’s determination was void before proceeding with a new adjudication application, it was not obliged to do so. The Court (Meagher, Leeming and Payne JJA) stated at [45]: