Aerial View Architecture Buildings 1383866

Security of Payment Act – Success story

  • October 8, 2018

We previously wrote an article (located here) earlier this year about challenging adjudication determinations and the grounds on which a stay may be granted.

We recently acted on behalf of a developer who was on the end of an unsatisfactory adjudication determination. The builder in question had engaged in questionable activities which caused our client concern that any payment would be converted from an interim payment into a final payment and that if our client was successful in its counter-claim the builder would take action to ensure that the counter-claim would not be paid.

We successfully argued the point before the His Honour McDougall J who agreed with us – a copy of the Judgment can be found here. He found that:

  1. It was open to infer that the principals of the builder had engaged in the practice of utilising phoenix companies;
  2. There was very strong evidence that the principals of the builder had structured their affairs in such a way as to avoid, wherever possible, paying their liabilities;
  3. The builder had engaged in a practice of misusing the processes of the Security of Payment Act; and
  4. By reason of the above matters, there was a very real risk that if the developer was successful in its claim it may not be paid and every real reason to think that the builder will do what they can to ensure that it will not be paid.

How can we help?

If you find yourself on the end of an unsatisfactory adjudication determine please contact us to discuss your options. We are very experienced in challenging adjudication determination and obtaining stays pending a final outcome.

Bryce Richards

Bryce joined the Keystone team in July 2016. He completed a Bachelor of Economics and Bachelor of Laws/Diploma of Legal Practice at the University of Newcastle. Prior to joining Keystone, Bryce worked in the commercial litigation team of a large Newcastle based law firm. During his time in this role, Bryce gained significant experience in a variety of commercial disputes with a focus on the building and construction industry, insolvency and debt recovery. He regularly advises and represents clients at all stages of disputes, including in respect of claims made in the NSW Civil & Administrative Tribunal, Local Court, District Court and Supreme Court.