Security of Payment Roundup 2017

After the excitement of the Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 53 decision last year we didn't have to wait very long until the High Court got to consider another SOPA case (in fact two) when the High Court heard the appeal from the NSW Court of Appeal in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 and the appeal from the Full Court of the Supreme Court of South Australia in Maxcon Constructions Pty Ltd v Vadasz [2018] HCA 5 . The decisions handed down early in 2018 affirmed that there is no right to challenge adjudicator’s decisions in NSW and SA on the grounds of error of law on the face of the record.

In Queensland the major talking point was the introduction of the Building Industry Fairness (Security of Payment) Act 2017 (BIF) which while it has been passed is still waiting to be proclaimed to commence. The BIF has major changes to the SOP landscape in Queensland including numerous benefits for claimants and numerous challenges for respondents as well as the introduction of a bonding scheme.

In Victoria, interest focused on whether Digby J’s appointment as Judge in Charge of the TEC list of the Victorian Supreme Court (in place of Vickery J) would see any departure from the previous SOPA jurisprudence. However, with only two decisions it was not possible to identify any trend.

In the Northern Territory, the Ichthys project has given opportunity for the development of the Territory’s SOPA jurisprudence, while major WA major followed the East Coast jurisdictions’ decisions regarding errors of law going to jurisdiction and excluding claims for damages for breach.

We hope you enjoy our comprehensive summary of the key security of payment decisions in 2017. If you have any feedback or questions, we would love to hear from you.