Security of Payment in the New South Wales Building and Construction Industry Seventh Edition, provides expert analysis of the security of payment regime and has been thoroughly revised and updated to capture NSW case law and legislative developments since 2016. Using the New South Wales Act as its cue, this annotation analyses the law and its detailed commentary captures the specialised insights of an expert in the field.
The Seventh Edition captures many significant new developments since the previous release in 2017. Legislative changes include:
- removal of the concept of reference dates from the Act;
- reinstatement of the requirement to state that a payment claim is made under the Act;
- power to set aside the determination in whole or in part;
- restriction on a corporation in liquidation serving a payment claim/enforcing a payment claim or an adjudication determination;
- removal of the owner-occupier construction contract exemption; and
- inclusion of a restriction on the right of entitlement to a progress payment where the builder is unlicensed or requisite insurance under the Home Building Compensation Fund is not taken out.
Important case law developments include:
- High Court of Australia determination that an adjudicator’s decision can only be set aside for jurisdictional error: in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018]; and
- Adjudicator’s duty to consider matters under s 22(2) of the Act; Martinus Rail Pty Ltd v Qube RE Services (No.2) Pty Ltd [2025]; Builtcom Constructions Pty Ltd v VSD Investments Pty Ltd as trustee for the VSD Investments Trust [2025] ; Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023];
- Denial of procedural fairness: Demex Pty Ltd v McNab Building Services Pty Ltd; A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2024];
- Validity of payment claims: Total Construction Pty Ltd v Kennedy Civil Contracting Pty Ltd (subject to a Deed of Company Arrangement) [2023]; EnerMech Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd [2024]; BSA Advanced Property Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd [2022];
- Validity of payment schedules: Witron Australia Pty Ltd v Turnkey Innovative Engineering Pty Ltd [2023]; Joye Group Pty Ltd v Cemco Projects Pty Ltd [2021]; Style Timber Floor Pty Ltd v Krivosudsky [2019];
- Whether an insolvent company not in liquidation can serve a payment claim/enforce a payment claim or an adjudication determination: Kennedy Civil Contracting Pty Ltd (Administrators Appointed) v Richard Crookes Construction Pty Ltd; In the matter of Kennedy Civil Contracting Pty Ltd [2023;
- Stays/injunctions: Black Label Developments Pty Ltd v McMenemy [2025]; TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020]; A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023]; and
- Interaction between the Act and the Contractors Debts Act 1997 (NSW): Warrane Design Construct Fit-Out Pty Ltd v Woonona Bulli RSL Memorial Club Ltd [2025].
Analysis is enhanced by an updated Comparative Table of Provisions referencing the relevant security of payment legislation in each of the other Australian jurisdictions.
Security of Payment in the New South Wales Building and Construction Industry contains detailed, up-to-date coverage of both the case law and legislation, providing a highly portable reference.
The material in this text has been extracted from the highly-regarded service, Commercial Arbitration Law and Practice, also available from Thomson Reuters.
Building & Construction