Kwik Flo Pty Ltd v SE Ware Street Dev Pty Ltd

1. [1]

   MITCHELMORE JA: I agree with Griffiths AJA.

2. [2]

   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.

3. [3]

   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.

4. [4]

   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).

5. [5]

   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 Act) 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.

6. [6]

   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.

7. [7]

   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.

8. [8]

   The reasons are structured as follows:

(a) The relevant parts of the statutory scheme

1. [9]

   There is a helpful broad overview of the statutory scheme in Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225; [2023] NSWCA 215 at [8]-[10] per Payne JA (Ward ACJ and Basten AJA agreeing):

2. [10]

   The objects of the SOP Act, as set out in s 3, reflect many of the features of the statutory scheme:

3. [11]

   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.

4. [12]

   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:

5. [13]

   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).

6. [14]

   Part 3 of the Act provides for the procedure referred to in s 3(3) for recovering progress payments. Section 13(1) provides:

7. [15]

   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)).

8. [16]

   Section 14 deals with the requirements of a payment schedule to be served by the respondent in reply to a payment claim.

9. [17]

   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:

10. [18]

    Section 17A provides for the right of a claimant to withdraw an adjudication application (see also s 26):

11. [19]

    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”.

12. [20]

    A respondent is permitted by s 20 to lodge an “adjudication response” to a claimant’s adjudication application. It provides:

13. [21]

    Section 21 provides for the procedures of an adjudication. It is relevant to note the following provisions with particular emphasis on the concept of an adjudicator “determining an adjudication application” and note also the express prohibition imposed by s 21(1) on an adjudicator determining an application before the end of the period for the lodgement of an adjudication response (see also the additional prohibition imposed by s 21(2)):

14. [22]

    Section 22 is an important provision. It is headed “Adjudicator’s determination”. It provides:

15. [23]

    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.

16. [24]

    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:

17. [25]

    Section 29 provides for an adjudicator’s fees. It is relevant to note sub-sections 29(4) and (5) which use the term “decision” on an application, as opposed to a “determination”:

18. [26]

    Section 32 preserves the rights of the parties under the construction contract. Those rights are distinct from the rights, entitlements and obligations created by the statutory scheme:

19. [27]

    Finally, it is relevant to note s 32A, which relates to the Court’s power to set aside the whole or any part of an adjudicator’s determination where there is a finding that the determination is affected by jurisdictional error:

(b) The background facts and the two adjudications

1. [28]

   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.

2. [29]

   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.

3. [30]

   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.

4. [31]

   Although the appellant carried out some work on the land, a construction certificate was never obtained and the land remains undeveloped.

5. [32]

   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.

6. [33]

   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).

7. [34]

   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:

8. [35]

   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”.

9. [36]

   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.

10. [37]

    The first adjudicator summarised his conclusions at [39]-[40] of his statement of reasons:

11. [38]

    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).

12. [39]

    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.

13. [40]

    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.

14. [41]

    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:

(c) The proceedings at first instance

1. [42]

   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.

2. [43]

   The respondent submitted that the second determination was void and should be quashed because:

3. [44]

   In brief, the primary judge held that:

4. [45]

   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.

5. [46]

   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.

6. [47]

   Her Honour summarised the facts and relevant principles of each of those cases at PJ[18]-[27] before identifying the following principles:

7. [48]

   The primary judge in the present proceeding also found Olympia Group to be distinguishable. Her Honour said at PJ[28]-[29] (emphasis in original):

8. [49]

   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.

9. [50]

   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.

10. [51]

    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.

11. [52]

    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.

12. [53]

    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.

13. [54]

    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.

(d) The parties’ primary submissions summarised

1. [55]

   The two grounds of appeal are as follows:

   1. (1)

      The primary judge erred (at PJ[30]) in finding that the "First Determination" was a determination for the purposes of the SOP Act.

   2. (2)

      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.

2. [56]

   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:

3. [57]

   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.

4. [58]

   The appellant further submits that the same issues were not re-agitated in the first and second adjudicative process.

5. [59]

   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.

(e) Consideration and determination

1. [60]

   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.

2. [61]

   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).

3. [62]

   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.

4. [63]

   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.

5. [64]

   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):

6. [65]

   To similar effect, also in Dualcorp, Allsop P said at [16]:

7. [66]

   And, more recently, in Builtcom Constructions Pty Ltd v VSD Investments Pty Ltd as trustee for the VSD Investments Trust (No 2) [2025] NSWCA 134 at [47]-[49] Leeming JA (Free JA agreeing) emphasised the limited scope for judicial intervention in the statutory scheme. It is well to set out [48] of that decision (emphasis added):

8. [67]

   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.

9. [68]

   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.

10. [69]

    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”:

11. [70]

    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.

12. [71]

    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.

13. [72]

    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).

14. [73]

    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.

15. [74]

    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).

16. [75]

    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.

17. [76]

    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):

18. [77]

    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.

19. [78]

    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.

20. [79]

    Subsequently, by an amendment, Olympia Group also contended that if an adjudicator had made a determination under s 22, the determination was void.

21. [80]

    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.

22. [81]

    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]:

23. [82]

    After referring to Brodyn at [15], Ball J stated at [16] that Brodyn was overruled in Chase Oyster (with respect, I consider that this overstates the position; the overruling was directed to the finding in Brodyn that certiorari was not available for jurisdictional error). His Honour then explained at [17] why he considered that the case before him was quite different (even on the basis of the narrow approach adopted in the case of Brodyn):

24. [83]

    His Honour then added at [19]:

25. [84]

    In those circumstances, after referring to s 26 of the SOP Act and also two cases which had held that an adjudicator “fails” to determine an application if the adjudicator’s decision is void for some reason, his Honour said at [21]:

26. [85]

    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.

27. [86]

    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.

28. [87]

    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.

29. [88]

    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.

30. [89]

    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.

31. [90]

    It is well to set out the Full Court’s reasons at [90]-[91]:

32. [91]

    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]).

33. [92]

    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.

34. [93]

    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.

35. [94]

    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.

36. [95]

    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.

37. [96]

    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.

38. [97]

    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]:

39. [98]

    This passage highlights an important difference between the circumstances in Parrwood and those here. Neither party here asserts that the first adjudicator’s decision on jurisdiction was void for jurisdictional error or otherwise, thus the premise underpinning the Court’s reasoning in Parrwood at [45] is entirely absent here.

40. [99]

    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.

41. [100]

    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):

42. [101]

    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.

43. [102]

    Stewart J’s observations regarding abuse of process were upheld in Forte Appeal. It is desirable to set out [98]-[100]:

44. [103]

    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.

45. [104]

    The following observations of Stevenson J in Ku-Ring-Gai Council v Ichor Constructions Pty Ltd [2014] NSWSC 1534 at [53] are apposite here:

46. [105]

    Merely because the second adjudicator proceeded to determine the substantive issues after concluding that there was jurisdiction to do so does not stand in the way of a finding that relevant issues were being re-agitated. I accept the respondent’s submissions on this matter in oral address:

47. [106]

    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.

48. [107]

    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.

49. [108]

    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.

(f) Conclusion

1. [109]

   For these reasons, I propose that the appeal be dismissed, with costs.

2. [110]

   PRICE AJA: I agree with Griffiths AJA.