2025/00376821
| Date | Party | Submission |
|---|---|---|
| 29/9/2025 | Appellant | Notice of Appeal (PDF, 164.4 KB) |
| 20/10/2025 | Appellant | Submissions (PDF, 409.6 KB) |
| 31/10/2025 | Respondent | Submissions (PDF, 449.3 KB) |
| 12/11/2025 | Appellant | Reply (PDF, 316.7 KB) |
| 18/11/2025 | Appellant | Certification of Suitability for Publication (PDF, 39.7 KB) |
| 18/11/2025 | Respondent | Certification of Suitability for Publication (PDF, 17.4 KB) |
BUILDING AND CONSTRUCTION – in March 2022, the directors of SE Ware Street Dev Pty Ltd (SE Ware) and Kwik Flo Pty Ltd (Kwik Flo) discussed a joint development of SE Ware’s land in Fairfield, New South Wales – the parties now disagree on the terms of the agreement – on 15 May 2025, Kwik Flo lodged an adjudication application, having served SE Ware with a payment claim of $3,000,000 for building works and alleged lost profits – the adjudicator concluded that he did not have jurisdiction to determine the appropriate amount of Kwik Flo’s payment claim because the parties’ “construction contract” fell within the exception in s 7(2)(c) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) – this was because the consideration payable was “to be calculated otherwise than by reference to the value of the work carried out or the value of the goods and services supplied” (First Determination) – on 20 June 2025, Kwik Flo purported to withdraw its adjudication application and submitted a new application to a different adjudication body – the second adjudicator made a determination in Kwik Flo’s favour for $1,200,000 (Second Determination), including different findings about the terms of the agreement – before the primary judge, SE Ware sought an order in the nature of certiorari to quash the Second Determination, arguing that the First Determination was a “determination” for the purposes of s 22(1) of SOPA and that the Second Determination constituted an abuse of process – the primary judge held that the First Determination was indeed a “determination” and, in those circumstances, the second application was an abuse of process – as a result, the judge held that SE Ware was entitled to injunctive relief preventing Kwik Flo from taking steps to register or enforce any judgment based on the Second Determination – whether the primary judge erred in finding that the "First Determination" was a determination for the purposes of SOPA – whether the primary judge erred in finding that it would be an abuse of process for Kwik Flo to attempt to enforce the "Second Determination" as a judgment and, therefore, in ordering that Kwik Flo be restrained from taking steps to register or enforce it.
Last updated: