FEDERAL COURT OF AUSTRALIA

Forte Sydney Carlingford Development Pty Limited v Forte Sydney Carlingford Pty Limited [2024] FCAFC 9

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    The applicant is to pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC AND HALLEY JJ:

1    Forte Sydney Carlingford Development Pty Limited (FSCD or Developer) seeks leave to appeal, and if leave is granted, appeals from orders made on 13 December 2022 restraining:

(1)    Australian Building & Construction Dispute Resolution Service Pty Limited (ABCDRS) from referring its payment claim dated 7 September 2022 and adjudication application to an adjudicator under Pt 3 Div 2 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act); and

(2)    FSCD from submitting its payment claim and adjudication application to any authorised nominating authority under Pt 3 Div 2 of the SOP Act,

see Forte Sydney Carlingford Pty Ltd v Li [2022] FCA 1499 (J).

2    The respondents to the application for leave to appeal (and the appeal) are Forte Sydney Carlingford Pty Ltd and ABCDRS but only Forte Sydney took an active role.

3    The application for leave to appeal and the appeal were heard together. For the reasons that follow we would refuse leave to appeal.

BACKGROUND

4    Forte Sydney, the first plaintiff in the proceeding below, is a special purpose vehicle established to undertake a joint venture by way of a residential apartment development at Carlingford, New South Wales. It owns the property on which the development is being undertaken: J [4]-[5].

5    By contract dated 3 March 2020 FSCD, the second defendant below, engaged Forte Sydney Construction Pty Ltd (Builder) to undertake the construction work for the development: J [5].

6    The claims made by the plaintiffs in the proceeding before the primary judge concern the terms of the agreements between the various parties standing behind Forte Sydney, the joint venture vehicle, about, among other things, the funding of the development. By way of cross-claim FSCD claims from Forte Sydney the costs of the construction work undertaken by the Builder and for which it is liable to the Builder: J [6].

7    On 13 October 2021 FSCD submitted an adjudication application for a payment claim dated 6 September 2021 to an authorised nominating authority under the SOP Act claiming an amount of approximately $3.9 million: J [16].

8    Stuart Wood was appointed as the adjudicator. Mr Wood issued a determination on 25 October 2021 in which he found that the arrangement between FSCD and Forte Sydney is not a “construction contract” consistent with the definition in s 4 of the SOP Act and that, even if it were a construction contract, it is exempt by reason of s 7(3)(c) from the application of the SOP Act because the parties had entered into loan agreements and/or indemnities: J [17].

9    In his determination Mr Wood said, among other things:

59.    I agree with [Forte Sydney] that the [Developer] provided no evidence of any agreement with [Forte Sydney] for the [Developer] to provide any of the services claimed by the [Developer]. Perusal of the evidence submitted by the [Developer] including the schedule commencing page 261 of the Adjudication Application, and the invoices attached, indicate that the vast majority of the invoices were addressed to [Forte Sydney] and not the [Developer]. Of those focussed on the [Developer], these appear to be largely for property advertising, sales and even for legal advice for the sale of properties, that would reasonably be the responsibility of the property developer, that being the [Developer].

60.    Furthermore, the [Developer] has provided no evidence of any agreement with [Forte Sydney] as to the fees to be paid for the alleged services, either by way of a margin on direct costs, and or by way of hourly rates and/or lump sum prices. I have then been provided with no evidence of any promise by [Forte Sydney] to pay the [Developer] for the alleged services.

61.    Taking account then of my obligations under section 22 of the [SOP Act], and the approach taken by the Courts to the evidence required to be submitted by a claimant and considered by an adjudicator …, based on the above considerations, I am not satisfied that the [Developer] has provided evidence sufficient to demonstrate the existence of a construction contract within the meaning of the [SOP Act], between the [Developer] and [Forte Sydney] for the purposes claimed by the [Developer].

10    On 7 October 2022 FSCD submitted an adjudication application for its payment claim to Resolution Institute, an authorising nominating authority, claiming approximately $8.44 million (First Application). As the primary judge recorded (at J [18]) in that application FSCD characterised the relationship between it and Forte Sydney in the following way:

(1)    The adjudication application concerns construction work and related goods and services “provided by the [Developer] on behalf of [Forte Sydney] in respect of the design and construction” of the project.

(2)    The Developer is the project development company and responsible for “providing development and building advisory services including managing [the Builder’s] performance of the construction Project and the planning of the Project”, engaging or instructing all consultants and sales and marketing service providers for the Project, and attempting to obtain finance for [Forte Sydney] from a lender for the Project.

(3)    The Developer engaged the Builder as contractor to carry out the construction works.

(4)    There was a joint venture agreement for the project which included that the “development company would be the [Developer], a SPV [to] manage and undertake the development on [Forte Sydney’s] behalf” and the Builder would “be engaged to physically construct the Project under a building contract”.

(5)    There was a project development agreement by which [Forte Sydney] engaged the Developer “to provide, procure and manage the goods services, know-how and infrastructure for the Project” (sic). The nature of the agreement was:

(a)    The [Developer] would be the project development company of the Project, and that this role included causing the project to be constructed (through contractors) and providing development and building advisory services including managing the Builder’s performance of the construction of the Project, reporting to [Forte Sydney] (including Roger and Isaac) and the planning of the Project, engaging or instructing all consultants and sales and marketing service providers for the Project, and attempting to obtain finance from a lender for the Project;

(b)    The [Developer] would manage the payment of all costs and expenses associated with the Project at first instance;

(c)    [Forte Sydney] would pay or reimburse the [Developer] for all the costs, expenses or liabilities that the [Developer] incurred in respect to the Project or in its role as project development company;

(d)    [Forte Sydney] would also pay the [Developer] $150,000 project management fee in addition to any costs, expenses or liability it incurred.

(6)    [Forte Sydney] has not paid the Developer in full for “the Contract Works carried out by the Builder”.

(7)    The contract is a construction contract under the Act “because it relates to the [Developer] performing construction work and providing goods and services to [Forte Sydney]”.

(8)    The Developer provided related goods and services as referred to in the Act because it provided to [Forte Sydney] the construction of the project, labour to carry out construction work, architectural and related professional services in relation to the construction work, and building and engineering advisory services in relation to the construction work.

11    Barry Tozer was appointed as adjudicator. He issued an adjudication determination dated 24 October 2022. After canvassing the parties’ respective submissions and evidence as to whether the contract was a “construction contract” for the purposes of the SOP Act, Mr Tozer found at [42] of his determination that “the [Developer] did not directly perform any construction work or provide related goods and services and the agreement between the [Developer] and [Forte Sydney] was not a ‘construction contract’ or arrangement as required by s 5 or s 6 of the [SOP Act]”. In the alternative Mr Tozer found at [55] that, if his finding that there was no construction contract was incorrect, the contract was in any event excluded from the operation of the SOP Act under s 7(3)(c)(iii): J [19]-[20].

12    On 4 November 2022 FSCD informed Resolution Institute that it withdrew its First Application and, at the same time, it resubmitted its adjudication application for the payment claim to Resolution Institute (Second Application) requesting that Mr Tozer not be appointed to adjudicate it. FSCD said that it considered that Mr Tozer’s determination was not a valid determination under the SOP Act and, on that basis, Mr Tozer had failed to determine the application within the time allowed by s 21(3) of the SOP Act. In its submissions in support of the Second Application FSCD contended that it was entitled to make a new application under s 26(1)(b) of the SOP Act because Mr Tozer had failed to determine the application within the time allowed by s 21(3). It identified the following two reasons, each of which it said was sufficient to justify the contention that no determination had been made:

(1)    Mr Tozer had not determined the application that was before him because he had decided that he lacked jurisdiction. Given that on Mr Tozer’s view there was no “application” to determine, he did not “determine” any such application – he issued a “non-determination”: J [23]; and

(2)    Mr Tozer’s determination was invalid ab initio because he erroneously concluded that there was an absence of a jurisdictional fact, namely the existence of a “construction contract”, when in fact that jurisdictional fact existed: J [24].

13    On 9 November 2022 Forte Sydney filed and served an interlocutory application seeking urgent injunctive relief against Resolution Institute to prevent it from referring the Second Application to an adjudicator for adjudication under s 17(6) of the SOP Act. Resolution Institute agreed to refrain from referring the Second Application to an adjudicator pending the determination of Forte Sydney’s interlocutory application.

14    FSCD withdrew the Second Application from Resolution Institute. On 30 November 2022 FSCD submitted a further adjudication application for the payment claim (Third Application) to a different authorised nominating authority, ABCDRS: J [27].

15    On 1 December 2022 ABCDRS confirmed receipt of the Third Application and said that it would proceed to appoint an adjudicator. That confirmation of receipt was received while the parties were before the primary judge in a case management hearing. At the time, on the oral application of Forte Sydney, which was not opposed by FSCD, his Honour made orders restraining ABCDRS from referring the Third Application to an adjudicator to enable an interlocutory application and evidence to be filed and served, and for the interlocutory application to be heard: J [28]-[29].

16    On 5 December 2022 Forte Sydney filed an interlocutory application in the proceeding below seeking orders restraining FSCD from submitting or purporting to submit its payment claim for adjudication under the SOP Act. That application was heard on 8 December 2022 and on 13 December 2022 orders were made granting the injunctions sought (see [1] above). It is those orders which are the subject of FSCD’s application for leave to appeal.

THE SOP ACT

17    Given its centrality to FSCD’s application, before proceeding further it is convenient to set out the relevant sections of the SOP Act and some general principles in relation to its operation.

18    Section 3(1) of the SOP Act provides that the object of the Act is to ensure that any person who undertakes to carry out construction work (or who undertakes to supply related goods and services) under a construction contract is entitled to receive, and is able to recover, progress payments in relation to the carrying out of that work and the supplying of those goods and services.

19    The term “construction contract”, which underpins the application of the SOP Act, is defined in s 4 as “a contract or other arrangement under which one party undertakes to carry out construction work, or to supply related goods and services, for another party”. The term “construction work” is defined in s 5(1) to mean any of the following work:

(a)    the construction, alteration, repair, restoration, maintenance, extension, demolition or dismantling of buildings or structures forming, or to form, part of land (whether permanent or not),

(b)    the construction, alteration, repair, restoration, maintenance, extension, demolition or dismantling of any works forming, or to form, part of land, including walls, roadworks, power-lines, telecommunication apparatus, aircraft runways, docks and harbours, railways, inland waterways, pipelines, reservoirs, water mains, wells, sewers, industrial plant and installations for purposes of land drainage or coast protection,

(c)    the installation in any building, structure or works of fittings forming, or to form, part of land, including heating, lighting, air-conditioning, ventilation, power supply, drainage, sanitation, water supply, fire protection, security and communications systems,

(d)    the external or internal cleaning of buildings, structures and works, so far as it is carried out in the course of their construction, alteration, repair, restoration, maintenance or extension,

(e)    any operation which forms an integral part of, or is preparatory to or is for rendering complete, work of the kind referred to in paragraph (a), (b) or (c), including—

(i)    site clearance, earth-moving, excavation, tunnelling and boring, and

(ii)    the laying of foundations, and

(iii)    the erection, maintenance or dismantling of scaffolding, and

(iv)    the prefabrication of components to form part of any building, structure or works, whether carried out on-site or off-site, and

(v)    site restoration, landscaping and the provision of roadways and other access works,

(f)    the painting or decorating of the internal or external surfaces of any building, structure or works,

(g)    any other work of a kind prescribed by the regulations for the purposes of this subsection.

20    “Related goods and services” are defined in s 6 of the SOP Act. In relation to services, the term means:

(b)    services of the following kind:

(i)    the provision of labour to carry out construction work,

(ii)    architectural, design, surveying or quantity surveying services in relation to construction work,

(iii)    building, engineering, interior or exterior decoration or landscape advisory services in relation to construction work,

21    Section 7(1) provides that the SOP Act applies to any construction contract whether written or oral or partly written and partly oral. Section 7(2) identifies those construction contracts to which the SOP Act does not apply and s 7(3) provides that the SOP Act “does not apply to a construction contract to the extent to which it contains” relevantly, “provisions under which a party undertakes to provide an indemnity with respect to construction work carried out, or related goods and services supplied, under the construction contract”: s 7(3)(c)(iii).

22    Part 2 of the SOP Act concerns the right to progress payments. Section 8 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.

23    Part 3 of the SOP Act concerns the procedure for recovering progress payments.

24    Division 1 of Pt 3 of the SOP Act is titled “Payment claims and payment schedules”. Section 13 concerns payment claims and provides that a person referred to in s 8 who is or who claims to be entitled to a progress payment (the claimant) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment. The section prescribes when a payment claim can be made and its form.

25    Division 2 of Pt 3 of the SOP Act is titled “Adjudication of disputes”. Section 17(1) provides that a claimant may apply for adjudication of a payment claim (referred to as an adjudication application) if:

(a)    the respondent provides a payment schedule under Division 1 but—

(i)    the scheduled amount indicated in the payment schedule is less than the claimed amount indicated in the payment claim, or

(ii)    the respondent fails to pay the whole or any part of the scheduled amount to the claimant by the due date for payment of the amount, or

(b)    the respondent fails to provide a payment schedule to the claimant under Division 1 and fails to pay the whole or any part of the claimed amount by the due date for payment of the amount.

26    An adjudication application must be in writing and must be made to an authorised nominating authority chosen by the claimant within nominated times, depending on the circumstances in which it is made: s 17(3). Relevantly, s 17(6) provides:

It is the duty of the authorised nominating authority to which an adjudication application is made to refer the application to an adjudicator (being a person who is eligible to be an adjudicator as referred to in section 18) as soon as practicable.

27    Section 21 of the SOP Act concerns adjudication procedures and includes:

(1)    An adjudicator is not to determine an adjudication application until after the end of the period within which the respondent may lodge an adjudication response.

(2)    An adjudicator is not to consider an adjudication response unless it was made before the end of the period within which the respondent may lodge such a response.

(3)    Subject to subsections (1) and (2), an adjudicator is to determine an adjudication application as expeditiously as possible and, in any case—

(a)    within 10 business days after—

(i)    if the respondent is entitled to lodge an adjudication response under section 20—the date on which the respondent lodges the response or, if a response is not lodged, the end of the period within which the respondent was entitled to lodge a response, or

(ii)    in any other case—the date on which notice of the adjudicator’s acceptance of the application is served on the claimant and the respondent, or

(b)    within such further time as the claimant and the respondent may agree.

28    Section 22(1) provides that an adjudicator is to determine: the amount of the progress payment, if any, to be paid by the respondent to the claimant; the date on which any such amount became or becomes payable; and the rate of interest payable on any such amount. Section 22(2) sets out those matters which the adjudicator is to consider in determining an adjudication application.

29    Section 26 sets out the circumstances in which a claimant may make a new adjudication application. It provides:

(1)    This section applies if—

(a)    a claimant fails to receive an adjudicator’s notice of acceptance of an adjudication application within 4 business days after the application is made, or

(b)    an adjudicator who accepts an adjudication application fails to determine the application within the time allowed by section 21(3).

(2)    In either of those circumstances, the claimant—

(a)    may withdraw the application, by notice in writing served on the adjudicator or authorised nominating authority to whom the application was made, and

(b)    may make a new adjudication application under section 17.

(3)    Despite section 17(3)(c), (d) and (e), a new adjudication application may be made at any time within 5 business days after the claimant becomes entitled to withdraw the previous adjudication application under subsection (2).

(4)    This Division applies to a new application referred to in this section in the same way as it applies to an application under section 17.

30    Section 32A(1) of the SOP Act provides that if, in any proceedings before the Supreme Court relating to any matter arising under a construction contract the Court makes a finding that a jurisdictional error has occurred in relation to an adjudicator’s determination, the Court may make an order setting aside the determination in whole or in part.

31    Judicial review of an adjudication determination under the SOP Act is only available for jurisdictional error: see Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at [2], [29]. That constraint on the power to review is “consistent with the objective of providing a ‘speedy and effective means of ensuring cash flow to builders from the parties with whom they contract’”: Probuild at [43].

32    In Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339 the New South Wales Court of Appeal considered the extent of the availability of judicial review in relation to an adjudication determination made under the SOP Act. At [10]-[13] Basten JA (with whom Meagher and Leeming JJA agreed) said:

10    In Brodyn Pty Ltd t/as Time Cost and Quality v Davenport Hodgson JA (with the agreement of Mason P and Giles JA) identified a number of basic and essential requirements of the Act, which included the following:

“1.    The existence of a construction contract between the claimant and the respondent, to which the Act applies (s 7 and s 8).

2.    The service by the claimant on the respondent of a payment claim (s 13).

3.    The making of an adjudication application by the claimant to an authorised nominating authority (s 17).

4.    The reference of the application to an eligible adjudicator, who accepts the application (s 18 and s 19).

5.    The determination by the adjudicator of this application (s 19(2) and s 21(5)), by determining the amount of the progress payment, the date on which it becomes or became due and the rate of interest payable (s 22(1)) and the issue of a determination in writing (s 22(3)(a)).”

11    Hodgson JA then identified certain “more detailed requirements: for example, s 13(2) as to the content of payment claims”, as to which he said that “the reasons given above for excluding judicial review on the basis of non-jurisdictional error of law justify the conclusion that the legislature did not intend that exact compliance with all the more detailed requirements was essential to the existence of a determination”.

12    It has been understood since Brodyn, and was affirmed by the High Court in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd, that judicial review of an adjudicator’s determination is available, but only for jurisdictional error on the part of the adjudicator.

13    It is a fundamental principle that the engagement of a statutory power may depend either upon the existence of an identified state of affairs, or a state of satisfaction of the decision-maker as to an identified state of affairs. In the first category, the actual state of affairs, being the criterion of engagement of the power, is described as a “jurisdictional fact”, meaning that the lawful exercise of the power may ultimately depend upon a finding of a court exercising judicial review as to whether or not the required state of affairs existed. The second category is sometimes also said to involve a jurisdictional fact, but only in the sense that the relevant fact is an opinion formed by the decision-maker; in that case a reviewing court can only be concerned with the existence and lawful formation of the opinion.

(Footnotes omitted.)

33    At [15] Basten JA noted that an adjudicator’s findings with respect to matters of fact, within jurisdiction, are not reviewable nor is an adjudicator’s determination of legal issues. At [16] his Honour continued:

Relevantly for the present case, with respect to the function conferred on the adjudicator under s 22(1) of the Act (determining “the amount of the progress payment” which is to be paid), s 22(2) requires that the adjudicator “is to consider the following matters only”. Those matters include “the provisions of the construction contract” and “the payment claim”. The fact that the requirement is limited to considering the provisions of the construction contract and the payment claim leads to the inference that the adjudicator is to act upon his or her understanding of the contractual obligations and of the content of the payment claim. While the construction of a contract will usually involve questions of law, the Act implicitly confers on the adjudicator the power to form an opinion as to the meaning of the contract, for the purposes of the adjudication. The adjudication cannot be set aside because an error of law in construing the contract appears on the face of the record, including in the reasons of the adjudicator. The same is true with respect to the scope of the payment claim.

34    As to the effect of a determination pending an application to set it aside for jurisdictional error, in Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) (2019) 99 NSWLR 317 Sackville AJA (with whom Leeming, Payne and White JJA and Emmett AJA agreed) said at [165]:

Characterising a determination affected by jurisdictional error as invalid does not necessarily mean that the determination has no legal consequences. In Chase Oyster Bar Basten JA quoted a passage from a Federal Court judgment which was expressly approved by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj as follows:

“There is no doubt that an invalid administrative decision can have operational effect. For example it may be necessary to treat an invalid administrative decision as valid because no person seeks to have it set aside or ignored. The consequence may be the same if a court has refused to declare an administrative decision to be invalid for a discretionary reason. In some circumstances the particular statute in pursuance of which the purported decision was taken may indicate that it is to have effect even though it is invalid or that it will have effect until it is set aside.”

(Footnotes omitted.)

35    At [175]-[176] his Honour said:

175    Despite the apparently unqualified observations of McHugh J in GJ Coles, a decision affected by jurisdictional error — even a failure to comply with a “mandatory” statutory precondition to the exercise of a power — is not necessarily devoid of legal consequences. In State of New South Wales v Kable Gageler J speaking of an invalid law said:

“[52] Yet a purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a ‘nullity’ in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself.” (Footnote omitted)

176    As the passage indicates, legislation may attach consequences to an act or decision that is “invalid” by reason of a jurisdictional error. The issue in the present case is therefore one of statutory construction: accepting that s 16(2)(a) provides “exclusive alternatives” to a claimant in the circumstances identified in s 16(1), does a claimant who lodges an adjudication application outside the period specified in s 17(3)(d) “make an adjudication application under section 17(1)(a)(ii)” for the purposes of s 16(2)(a)(ii) of the Security of Payment Act? The question must be addressed on the basis that compliance with s 17(3)(d) is an essential precondition for a valid adjudication application and valid adjudication determination.

(Footnotes omitted.)

36    Recently, in Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215 the New South Wales Court of Appeal considered the question of whether an adjudication determination affected by legal error is necessarily void for all purposes. At [132]-[136] Payne JA (with whom Ward ACJ and Basten AJA agreed) relevantly said:

132    An adjudication determination affected by legal error is not necessarily void for all purposes. One of those purposes is the obligation to pay costs of the adjudication provided in s 29(1)-(3). The adjudicator’s right to be paid is based on a fact: the adjudicator is “entitled to be paid for adjudicating an adjudication application”.

133    To paraphrase Gageler J in New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [52], the action so taken, adjudicating an adjudication application, has consequences for the creation of legal rights and legal obligations, as set out in s 29, which consequences do not depend on the legal force of the adjudication decision itself.

134    The obligation of the parties to pay the “the adjudicator’s fees and expenses” being the subject matter of s 29(1), either “jointly and severally” (s 29(2)), or “in such proportions as the adjudicator may determine” (s 29(3)) is based on the fact underlying s 29(1), that the adjudicator is “entitled to be paid for adjudicating an adjudication application”. If that work is done, that remains a fact whether or not the decision is subsequently set aside for jurisdictional error.

135    In context, s 29(4) is not engaged in a case where an adjudicator’s decision is subsequently struck down, in whole or in part, for jurisdictional error. ...

136    Insofar as Ceerose relied on Cardinal at [82]-[84] and [105] for the contrary proposition, there is much force in the dissent of Basten JA in that case, as this Court explained in Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWCA 172 at [44] (Meagher, Leeming and Payne JJA). If it were necessary to decide here, I would find that the majority in Cardinal should no longer be followed and Basten JA’s dissent is correct. As the Court said in Parrwood, Basten JA’s construction is more consistent with the High Court’s decision in Hossain at [24].

    (Footnote omitted.)

THE PRIMARY JUDGE’S REASONS

37    After reciting the relevant facts and summarising the features of the SOP Act, the primary judge considered: first, whether there was a serious question to be tried; and secondly, whether the balance of convenience favoured the granting of the relief sought.

38    As to the former, serious question to be tried, the primary judge noted (at J [31]) that Forte Sydney had sought to amend its case to seek a permanent injunction against FSCD from requesting ABCDRS, or any other nominating authority, to nominate an adjudicator for the determination of any payment claim under the SOP Act in respect of the development, which was the final relief in aid of which Forte Sydney sought the interlocutory injunction.

39    The primary judge recorded the parties’ respective submissions:

(1)    Forte Sydney submitted that there was a serious question to be tried in respect of the relief it sought because Mr Tozer’s adjudication determination was a valid and binding determination with the result that FSCD’s purported withdrawal of the adjudication application to Mr Tozer and its subsequent re-submission of the adjudication application first to Resolution Institute and subsequently to ABCDRS was invalid under the SOP Act: J [31];

(2)    FSCD submitted that Mr Tozer’s purported determination was invalid and a nullity because Mr Tozer had committed a jurisdictional error, namely that he asked himself the wrong question. He asked whether FSCD had itself, or “directly”, performed construction work whereas he should have asked himself whether FSCD had “undertaken to carry out construction work”, with the result that it was entitled under s 26(1)(b) of the SOP Act to withdraw and re-submit the application: J [24];

(3)    in its submissions in support of the Second Application FSCD said that Mr Tozer’s conclusion that the contract was excluded from the operation of the SOP Act because of s 7(3)(c)(iii) was incorrect. FSCD submitted that Mr Tozer made a legal error because the effect of that provision is to exclude from the operation of the SOP Act only the provisions of the contract that are found to fall within it, i.e., that provide an indemnity with respect to construction work carried out, and not the contract as a whole. FSCD thus submitted that, as a result, the adjudicator must disregard the indemnity provisions of the contract but still adjudicate the payment claim: J [25]; and

(4)    FSCD also contended that the granting of an interlocutory injunction as sought by Forte Sydney was in effect final relief, rather than interim relief, because it would prevent it from exercising its rights to progress payments under the SOP Act and once the parties’ final rights had been determined the SOP Act would have no role to play. For that reason Forte Sydney was required to establish the right that it sought to protect on a final basis: J [32].

40    The primary judge addressed those submissions. First, his Honour observed that FSCD did not submit to Mr Tozer that its contract with Forte Sydney was such that it “under[took] to carry out construction work, or to supply related goods and services”. FSCD claimed that its contract was that it would act as a development company providing development and building advisory services, that it would engage the Builder under a construction contract to carry out the construction work and that it would manage the development on Forte Sydney’s behalf.

41    The primary judge also observed that Mr Tozer had canvassed FSCD’s submissions at some length and that the two lines seized upon in Mr Tozer’s reasons, that the building work “was not work that the [Developer] itself performed” and “the [Developer] did not directly perform any construction work or provide related goods and services”, must be understood in the context of FSCD’s submissions. His Honour found that Mr Tozer decided whether Forte Sydney and FSCD were parties to a “construction contract” by responding to the case put by FSCD. His Honour continued (at J [34]):

The Developer put no case that it undertook to perform construction work, and it therefore lies ill in the Developer’s mouth to criticise Mr Tozer for not in those terms considering whether the Developer undertook to perform construction work. Mr Tozer’s reasoning that the Developer did not itself perform any construction work is a direct response to the submission that the Developer’s role was to cause the project to be constructed; he was in effect saying that the Developer did not undertake to perform construction work, whether itself or through sub-contractors, but rather it undertook to manage the development project by causing others to do the construction, which it did through a construction contract with the Builder.

42    The primary judge concluded that, on a fair reading of Mr Tozer’s determination, he did not ask himself the wrong question in relation to whether there was a “construction contract” and, even if he did, the error was immaterial in light of the case put by FSCD because, had he asked whether FSCD “undertook to carry out construction work”, there was no realistic possibility that he would have concluded that it did. The primary judge also concluded that there was no realistic possibility that a different ultimate conclusion would have been reached in light of the operation of s 7(3)(c)(iii) of the SOP Act. Thus, his Honour was satisfied that Forte Sydney “not only has a case at the level of a serious issue to be tried on this question, but that Mr Tozer’s determination that he lacked jurisdiction is not vitiated by jurisdictional error and is valid”: J [34]-[35].

43    In relation to the operation of s 7(3)(c)(iii) of the SOP Act, the primary judge rejected FSCD’s submissions to the effect that, having found that there were provisions in the relevant contract or arrangement by which Forte Sydney provided an indemnity to FSCD for construction work carried out, or related goods and services supplied, within the meaning of that provision, the adjudicator was obliged to disregard the indemnity and, in any event, adjudicate the payment claim. His Honour gave reasons for reaching that conclusion.

44    The primary judge accepted that where part of a claim is based on an indemnity and another part is not, the operation of s 7(3)(c)(iii) has the result that the latter part of the claim must still be adjudicated. It follows from the chapeau to s 7(3), that the Act “does not apply to a construction contract to the extent to which it contains …”, that it is not the construction contract as a whole that is exempted from the application of the SOP Act.

45    However, the primary judge found that where the whole of the claim was said to be payable by Forte Sydney because of its undertaking or obligation to “pay or reimburse the [Developer] for all the costs, expenses or liabilities that the [Developer] incurred in respect to the Project or in its role as project development company”, the whole of the claim is excluded from adjudication under the SOP Act. His Honour explained that this was because “the extent to which [the contract] contains” an indemnity must include the liability or obligation to pay under the indemnity, otherwise s 7(3)(c)(iii) would do no work at all. His Honour went on to say that the payment obligation is excluded from the SOP Act such that there is no remaining payment obligation in the relevant contract. It followed that the primary judge did not accept that there was any jurisdictional error by Mr Tozer in concluding that FSCD’s contended for contract or arrangement, even if it was a “construction contract”, was exempt from the operation of the SOP Act: J [36]-[37].

46    The primary judge concluded (at J [38]) that therefore FSCD was not entitled to withdraw the Second Application from Resolution Institute and resubmit it to ABCDRS.

47    The primary judge raised a further consideration, namely that it was, in his Honour’s view, an abuse of the procedures of the SOP Act for FSCD to seek to re-agitate a claim which had already been decided. While the primary judge acknowledged that it may be that a determination vitiated by jurisdictional error is no determination at all and can be ignored, that “does not mean that the repetitious use of the [SOP Act] by resubmitting the same payment claim to successive adjudicators in the hope of a favourable outcome is not an abuse of the processes of the [SOP Act]”: J [39].

48    As to balance of convenience, the primary judge was satisfied that the balance of convenience favoured the granting of an injunction giving three reasons why that was so: J [42]-[45].

THE APPLICATION FOR LEAVE TO APPEAL AND PROPOSED GROUNDS OF APPEAL

49    In its application for leave to appeal FSCD contends, among other things, that the judgment is, in substance, a final judgment in that the orders made on 13 December 2022 wholly destroy its rights under the SOP Act and the appeal raises issues of principle and general importance. They include: the meaning of s 7(3)(c)(iii) and s 26(1)(b) of the SOP Act; the effect on the validity of a payment claim and adjudication application if a construction contract contains a provision caught by s 7(3)(c)(iii); and the application of abuse of process principles under the SOP Act.

50    The application for leave to appeal was accompanied by a draft notice of appeal which raises five proposed grounds of appeal. In summary, FSCD contends that the primary judge erred in:

(1)    concluding (at J [31]-[35]) that Mr Tozer’s determination was not vitiated by jurisdictional error and was valid;

(2)    concluding (at J [35]-[38]) that s 7(3)(c)(iii) of the SOP Act operated to deny jurisdiction to determine the payment claim;

(3)    failing to conclude that there was a right to withdraw the adjudication application under s 26(1) of the SOP Act because the adjudicator had concluded he lacked jurisdiction and thus had failed to decide the application;

(4)    concluding (at J [38]-[40]) that it was an abuse of process for it to withdraw and re-submit under s 26 of the SOP Act; and

(5)    concluding that the balance of convenience supported an interlocutory injunction.

Principles – leave to appeal

51    The Court will grant leave to appeal where a decision is attended by sufficient doubt to warrant it being reconsidered by a Full Court and substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

52    Appellate courts are to exercise particular caution in reviewing decisions relating to practice and procedure: see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 at 177. The restraining orders made by the primary judge which are the subject of this appeal are matters of practice and procedure.

53    That said, in Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 a Full Court of this Court (Dowsett, Foster and Yates JJ) observed at [29] that, while the test set out in Décor is appropriate for the general run of cases, it should not be applied as if it were a hard and fast rule and each case must be considered on its merits. At [33]-[34] the Full Court said:

33    In Ex parte Bucknell, the High Court emphasised the importance of the Court considering the practical operation or effect of the interlocutory order from which leave to appeal is sought. Leave should readily be granted if, as a practical matter, the interlocutory order has the effect of determining the whole of the proceeding or an important issue in the proceeding.

34    In Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [53], Gummow and Hayne JJ said that, although the grant of an interlocutory injunction is a matter of practice and procedure, where matters of principle are involved, an appeal “stands somewhat above the ordinary appeal in a matter of practice and procedure”.

54    Those principles are also to be considered in light of the fact that the decision of the primary judge to grant the restraining orders was discretionary. Accordingly, to succeed in an appeal FSCD needs to establish that his Honour’s discretion miscarried. It is not enough that this Court might have made a different decision had it been in the position of the primary judge. Rather, for the Court to review the decision and exercise its discretion, FSCD needs to demonstrate that the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, was mistaken as to the facts or did not take into account a material consideration: House v The King (1936) 55 CLR 499 at 505.

Should there be a grant of leave to appeal?

55    FSCD submits that this Court should comfortably find that there is sufficient doubt to warrant reconsideration of the primary judge’s orders on appeal.

56    The questions for the primary judge were: was there a serious question to be tried; and, if so, did the balance of convenience favour the granting of the relief sought by Forte Sydney. FSCD concedes that Forte Sydney raised a serious question to be tried but, it seems, contends that the primary judge could not be satisfied to the requisite level of the strength of that question or, put another way, that Forte Sydney had a relatively strong case. FSCD also contends that the balance of convenience favoured rejection of Forte Sydney’s application.

57    The primary judge considered those questions on the basis of the final relief sought by Forte Sydney in its amended statement of claim filed on 12 December 2022. This was after the hearing of Forte Sydney’s application for interlocutory relief but the day before the primary judge published reasons and made orders granting the relief sought. Forte Sydney added the claim for relief under the SOP Act as part XXXI of the amended statement of claim commencing at [296]. At [303]-[304] Forte Sydney contended that (underlining omitted):

303.    The contract or other arrangements made between [Forte Sydney] and [FSCD] was not a “construction contract” for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the SoP Act).

304.    Further and in the alternative, the contract or other arrangements made between [Forte Sydney] and [FSCD] were a contract or arrangements to which the SoP Act did not and does not apply pursuant to s.7(3)(c) of the SoP Act.

58    The primary judge determined to make the orders sought for the reasons summarised above.

59    In our view the decision of the primary judge is not attended by sufficient doubt to warrant it being reconsidered by a Full Court nor are we satisfied that, if the decision of the primary judge was wrong, substantial injustice would result if leave were refused.

60    FSCD has not demonstrated that the primary judge’s discretion miscarried in that his Honour acted upon a wrong principle, allowed extraneous or irrelevant matters to guide him, was mistaken as to the facts or did not take into account a material consideration. His Honour was satisfied that there was a serious question to be tried, that Forte Sydney had established that its claim for relief was likely to succeed and that the balance of convenience favoured granting the relief sought. No arguable error has been shown in his Honour’s reasoning.

61    The relief granted by the primary judge is interim. No substantial injustice can arise in circumstances where, at its highest, FSCD has lost interim rights in circumstances where the principal proceeding, which will determine the parties’ rights on a final basis, is, as we understand the position, imminent and where FSCD did not seek expedition of the hearing of its application for leave to appeal. FSCD did not lead any evidence of prejudice or substantial injustice that arose as a result of the orders made by the primary judge on its application for leave to appeal.

62    Our reasons for reaching that conclusion follow.

Proposed grounds 1, 2 and 3

63    It is convenient to deal with these proposed grounds together.

64    By proposed ground 1 FSCD contends that the primary judge erred in concluding that Mr Tozer’s determination was not vitiated by jurisdictional error and was valid. By proposed ground 2 FSCD contends that the primary judge erred in concluding that s 7(3)(c)(iii) of the SOP Act operated to deny Mr Tozer jurisdiction to determine the payment claim. By proposed ground 3 FSCD contends that the primary judge erred in failing to conclude that there was a right to withdraw the adjudication application.

FSCD’s submissions

65    FSCD submits that a premise of Forte Sydney’s application before the primary judge was that Mr Tozer’s adjudication determination was valid. It contends that if it was invalid it is difficult to see how withdrawing and resubmitting was an abuse of process or prevented by issue estoppel.

66    By its submissions in support of proposed grounds 1 and 2, FSCD contends that Mr Tozer’s determination was invalid and that the primary judge erred in his conclusion to the contrary. It submits:

(1)    as to validity of Mr Tozer’s determination, the key issue was whether Mr Tozer correctly concluded that there was no construction contract, a jurisdictional fact in respect of which Mr Tozer’s opinion was not binding, and which was a matter to be determined de novo by the Court;

(2)    the primary judge failed to address or make findings as to that jurisdictional fact, instead treated the determinative issue to be whether Mr Tozer had asked the correct question and the result of that erroneous approach was that the primary judge concluded (at J [35]) that “Mr Tozer’s determination that he lacked jurisdiction [was] not vitiated by jurisdictional error and [was] valid”, without making any finding on the key reason why it was not valid and had not been shown to be valid;

(3)    the primary judge did not refer to or consider any of the evidence it relied on as to why there was a construction contract, which was particularly problematic because Forte Sydney had not pleaded or argued that there was no construction contract, whether on a final or on a prima facie basis;

(4)    the primary judge erred in concluding that Mr Tozer asked the correct question. The primary judge erred at J [33]-[34] in assuming that there is an undertaking to carry out construction work only if there is an undertaking directly to do things which might conventionally be understood as construction work. A person who undertakes to manage construction work and bring it to completion undertakes to carry out construction work at least by reason of s 5(1)(e) and s 6(1)(b)(iii), properly understood. FSCD contends that the SOP Act contemplates that there can be a construction contract even where the work the subject of that contract is subcontracted;

(5)    the primary judge failed entirely to address its case that it had undertaken to supply building advisory services in the nature of project management services. It submits that the primary judge in fact concluded that it “undertook to manage the development project by causing others to do the construction” (at J [34]) which sounds like the very kind of work – “an obligation to monitor and administer work” – which was found to be the supply of related goods and services in Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd [2012] NSWCA 31 at [34]-[37]. FSCD observes that the primary judge did not refer to Edelbrand or any authorities on the construction of s 5 and s 6 of the SOP Act;

(6)    as to the application of s 7(3)(c)(iii), that the primary judge erred in concluding that it had the result that the whole of the claim was excluded from adjudication under the SOP Act. The primary judge reasoned (at J [37]): first, that the whole of FSCD’s claim was based on an indemnity to which the SOP Act had been disapplied; and secondly, that where that was the case, there was no remaining payment obligation to which the SOP Act can apply. That reasoning was wrong for a number of reasons;

(7)    as to the first proposition:

(a)    FSCD also claimed for its $150,000 project management fee, which the primary judge did not mention. It can be inferred that his Honour failed to have regard to it; and

(b)    his Honour acted on a wrong principle, namely that a contractual provision entitling a builder to payment of its costs was an indemnity excluded by reason of s 7(3)(c) of the SOP Act. Referring to IWD No 2 Pty Ltd v Level Orange Pty Ltd [2012] NSWSC 1439, FSCD submits that the arrangements here did not meet the description of an “indemnity” in the sense that Forte Sydney did not assume a primary liability for FSCD’s obligations, as distinct from a contract of guarantee. It submits that the construction contract was of a conventional kind whereby FSCD had its own legal relations with its subcontractors and Forte Sydney agreed to compensate FSCD on the basis of cost, plus a fixed $150,000 margin;

(8)    as to the second proposition, there is no authority holding that the SOP Act applies only where there is a “payment” obligation in a contract to which that Act applies. The relevant jurisdictional precondition is that there is a “construction contract” but the existence of a construction contract turns on the undertakings given by the builder not on the undertakings, including payment undertakings, given by the principal. A contract can have no payment terms and yet be a construction contract. The entitlement to a progress payment is given to a person who has undertaken to carry out construction work not to a person who is entitled to payment under the contract; and

(9)    the primary judge erred (at J [35]) in reaching a final decision as to the application of s 7(3)(c)(iii). Forte Sydney did not seek a final resolution of that question. Its case was always pitched as one of a serious question to be tried, the parties had not adduced evidence seeking to establish the existence and terms of the contract on a final basis and Forte Sydney had not responded to its request for it to identify whether it asserted that the contract was exempt under s 7(3)(c)(iii) of the SOP Act.

67    In support of proposed ground 3 FSCD submits that the primary judge erred by failing to consider the principal reason it put forward as to its right to withdraw the Second Adjudication Application, namely that an adjudicator fails to determine an application if the adjudicator forms the view that he or she lacks jurisdiction.

68    As Forte Sydney observes, despite their detail, proposed grounds 1, 2 and 3 can be distilled into a single proposition for which FSCD contends: an adjudication determination that is invalid or infected with jurisdictional error is of no effect.

69    Before we turn to consider that proposition, it is convenient to address each of proposed grounds 1, 2 and 3.

70    By proposed ground 1, FSCD contends, in effect, that the primary judge erred in the way in which he considered Mr Tozer’s finding that there was no construction contract, as a matter of jurisdictional fact.

71    The primary judge considered the case put to him by FSCD. His Honour summarised FSCD’s submissions including at J [24] where he noted that FSCD submitted that Mr Tozer’s determination erroneously concluded that there was an absence of a jurisdictional fact, i.e. that there was no construction contract, and that his determination was invalid and a nullity on account of jurisdictional error being that Mr Tozer “asked himself the wrong question”: see [39(2)] above.

72    The primary judge addressed that submission, finding at J [33] that FSCD did not submit to Mr Tozer that its contract or arrangement with Forte Sydney was for it to undertake to carry out construction work or to supply related goods or services. His Honour found that Mr Tozer engaged with FSCD’s submission and that on a fair reading of the determination he did not ask himself the wrong question. As the primary judge found, Mr Tozer’s approach was framed by the submissions put to him by FSCD such that, to adopt the primary judge’s language, it “lies ill” to make complaint about that.

73    For the purposes of the present application, we can discern no arguable error in his Honour’s approach. His Honour was considering whether there was a serious question to be tried in the face of an application for an injunction restraining the appointment of an adjudicator to consider the Third Application which FSCD said it was entitled to make. The “serious question” was whether there was an arguable case in relation to Mr Tozer’s jurisdiction to undertake an adjudication determination under the SOP Act which, in turn, depended on the existence or otherwise of a construction contract. The primary judge implicitly found that there was an arguable case that there was no construction contract: see J [35].

74    Proposed ground 2 concerns the primary judge’s consideration of the application of s 7(3)(c)(iii) of the SOP Act. Once again, the primary judge summarised FSCD’s submissions and addressed them (see [39(3)] and [43] above). Relevantly, the primary judge accepted FSCD’s contention, which is repeated here, that s 7(3)(c)(iii) of the SOP Act is to be applied, where part of a claim is based on an indemnity and part is not, only to the former and that there must be an adjudication in relation to that part of the claim not based on the indemnity. However, the primary judge found that the whole of the claim was payable by Forte Sydney as a consequence of it undertaking to pay or reimburse FSCD for all of the costs, expenses or liabilities that it incurred in relation to “the Project or in its role as project development company” such that the whole claim was excluded from adjudication under the SOP Act.

75    FSCD also submits, as a matter of procedural fairness, that the primary judge should not have determined the application of s 7(3)(c)(iii) of the SOP Act on a final basis. However, as Forte Sydney points out FSCD submitted to the primary judge that his Honour had to be satisfied on a final basis that Mr Tozer’s determination was valid. Assuming that is what the primary judge did, as opposed to satisfying himself of the strength of the case that there was no construction contract, it is difficult to see how his Honour could be said to have erred.

76    As to proposed ground 3, which concerns FSCD’s asserted right to withdraw the Second Application, its success depends on FSCD’s contention that Mr Tozer’s determination is not a determination for the purposes of s 22 of the SOP Act, a contention which we address below but in relation to which there is insufficient doubt to warrant reconsideration on appeal.

77    We turn to address the proposition which underpins these grounds, namely that an adjudication determination that is invalid or infected with jurisdictional error is of no effect. As we understand it, FSCD contends that Mr Tozer’s finding that he had no jurisdiction because there was no construction contract was a finding about a jurisdictional fact, he erred in reaching that conclusion such that his determination was vitiated by jurisdictional error and, as a consequence, he did not make a determination or, alternatively, his determination was invalid.

78    There is also a practical effect to FSCD’s submissions that cannot be ignored. That is, on FSCD’s case and as evidenced by the steps it took, FSCD contends that if an adjudicator finds that there is no construction contract, and thus he or she has no jurisdiction under the SOP Act, a claimant can withdraw its application and resubmit it. In other words, a claimant can determine for itself whether an adjudication determination is affected by jurisdictional error and is thus void or invalid and can be ignored.

79    Mr Tozer made a finding that there was no “construction contract” for the purposes of the SOP Act and therefore he did not have jurisdiction to determine the claim. The question that arises is whether that was a determination for the purposes of s 22 of the SOP Act.

80    In Alucity Architectural Product Supply Pty Ltd v Australian Solutions Centre [2016] NSWSC 608 the claimant, Alucity, contended that it was entitled to restitution of the fees it paid the adjudicator and the nominating authority because there had been a total failure of consideration. Alucity said that was because the adjudicator “has no entitlement to payment for doing anything except produce a determination within the meaning of s 22 of the [SOP] Act” and, because he found that he had no jurisdiction, “he did not produce a determination within the meaning of s 22”: at [49]-[50]. Commencing at [57] Hammerschlag J addressed that argument. At [58] and [60] his Honour relevantly said:

58    Section 22(1)(a) requires the adjudicator to determine the amount of the progress payment (if any) to be paid by the respondent to the claimant. A determination that no amount is to be paid because the claim is invalid is no less a determination than one which determines that no money is payable for some other reason.

…

60    Empire Windows raised the question of s 13(5) invalidity in each of its payment schedule, adjudication response, and supplementary submissions. Alucity responded by dealing with the merits of the contention, and without any suggestion that the adjudicator should not, or was not empowered, at least in the first instance, to determine the issue because it went to his jurisdiction. To the contrary, Alucity and Empire Windows joined issue on the question, with the consequence that the adjudicator had to, and did, deal with it.

81    Here, the parties joined issue on the question of whether there was a construction contract. In its adjudication application FSCD contended that there was a construction contract and in its adjudication response Forte Sydney contended that the arrangement between FSCD and it was not a construction contract for the purposes of s 7(1) of the SOP Act. Mr Tozer determined that question, as he was required to do, finding that there was no construction contract and accordingly, that he did not have jurisdiction. As was the case in Alucity that finding, which impliedly results in a nil determination, “is no less a determination than one which determines that no money is payable for some other reason”.

82    FSCD relies on Olympia Group (NSW) Pty Ltd v Hansen Yuncken Pty Ltd [2011] NSWSC 165. However, the facts of that case, summarised below, were different to those in the present case.

83    In Olympia Group the plaintiff, Olympia, and the defendant, Hansen Yuncken, entered into a subcontract for a lump sum pursuant to which Olympia agreed to refurbish the Geelong building as part of the redevelopment of HMAS Creswell, a shore establishment of the Royal Australian Navy located at Jervis Bay. Section 4 of the Jervis Bay Territory Acceptance Act 1915 (Cth) provides that the area occupied by HMAS Creswell is a territory of the Commonwealth known as the Jervis Bay Territory and s 4A of that Act provides that the laws of the Territory are the laws of the Australian Capital Territory (ACT). The contract between Olympia and Hansen Yuncken provided for it to be governed by the laws of the ACT.

84    After exchange of a payment claim and payment schedule, on 15 February 2011 Olympia made an adjudication application under the SOP Act to an authorised nominating authority, Australian Solutions Centre (ASC), for adjudication of its payment claim. On 17 February 2011 Hansen Yuncken wrote to ASC noting that HMAS Creswell was situated in the Territory and referring to s 7(4) of the SOP Act which provides that the SOP Act does not apply to a construction contract to the extent that the contract deals with construction work carried out outside New South Wales or related goods and services supplied in respect of construction work of that type. Hansen Yuncken’s letter concluded:

Respectfully, we request the nominated adjudicator to consider, prior to acceptance of the nomination, whether he or she has the jurisdiction to determine the Adjudication Application in consideration of the above matters.

85    Olympia responded by letter also dated 17 February 2011 noting that the jurisdictional issue was not raised by Hansen Yuncken in its payment schedule and then providing a substantive response on the issue. Its letter included:

To the extent which it may be relevant, the Respondent has not yet submitted its Adjudication Response and the matters contained in its facsimile will not be “duly made” for the purposes of section 22(2)(d) of the [SOP Act]. The Claimant submits that the submission should not be considered unless and until it is a submission “duly made” within the meaning of that section.

86    An adjudicator was nominated and accepted his nomination. On 22 February 2011 ASC wrote to the parties stating that the adjudicator had requested it to advise them that:

Pursuant to Section 22(2)(a) of the Building and Construction Industry Security of Payment Act (Act) I have formed the opinion that I do not have jurisdiction to determine the adjudication application.

I refer to the Respondent’s unsolicited correspondence dated 17th February 2011, which I note is in relation to jurisdictional issues so I must consider the contents.

...

I am satisfied the ... boundaries [of the Territory] encompass the construction site the subject of this adjudication application and as such is a territory under Australian Capital Territory jurisdiction.

Based on the above I am satisfied the contract and therefore the payment claim made under the contract is not under the jurisdiction of the Building and Construction Industry Security of Payment Act 1999. As such I have formed the view the Payment Claim the subject of this adjudication application is invalid.

87    Olympia commenced proceedings. It made three claims including relevantly that the adjudicator failed to determine its claim within the time allowed by s 21(3) of the SOP Act such that it is now entitled under s 26(2) to withdraw its original adjudication application and to make a new adjudication application under s 17 of the SOP Act.

88    In considering that claim at [14] Ball J said:

I do not accept Hansen Yuncken’s submissions. In my opinion, the adjudicator’s decision was not a determination of the type contemplated by s 22 of the SOP Act. Rather, it was a decision whether the SOP Act applied to the claim made by Olympia having regard to where the relevant construction work was carried out. The adjudicator had to make a decision about that question because it was an essential precondition to the exercise of the powers granted to him by the Act. But is does not follow that, in making that decision, he was exercising a power to make a determination of the type required by s 22. As Spigelman CJ explained in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 272 ALR 750 at [36]:

…

89    At [19] his Honour concluded:

In my opinion, the conclusion that the adjudicator did not make a determination under s 22 of the SOP Act is supported by what the adjudicator actually did. He was asked to make a decision on the question of jurisdiction before he accepted his nomination. Faced with that request, he accepted his nomination but, on the same day, caused ASC to write to the parties to say that he accepted that he did not have jurisdiction. He did not wait for an adjudication response as he was required to do before making a determination under s 22. Nor does it appear that he examined the payment claim or the payment schedule in arriving at his decision. Rather, what he relied on was the fact that the construction site was located outside New South Wales. It seems clear from those facts that the adjudicator - correctly, in my view - was not purporting to make a determination under s 22.

90    In Olympia Group, as Ball J found to be the case, the adjudicator did not await an adjudication response nor apparently did he examine the payment claim or payment schedule. He considered the question of jurisdiction as a preliminary matter, as he was asked to do, forming a view about the issue on the same day as he accepted his nomination. That is not what happened here. Rather, in contrast, the question of existence of a construction contract and therefore jurisdiction was not raised as a preliminary or threshold issue but in detailed submissions. Mr Tozer accepted his nomination, he then considered the payment claim, payment schedule and the adjudication response and wrote a lengthy and considered determination having regard to that material.

91    Mr Tozer’s determination was a determination for the purposes of s 22 of the SOP Act. As Forte Sydney submits, a claimant cannot determine for itself whether an adjudication application is affected by jurisdictional error and thus void or invalid and to be ignored. That is a question for a court on an application for judicial review. While judicial review was and is available to FSCD to challenge Mr Tozer’s adjudication determination on the basis that he committed a jurisdictional error, it has not pursued that course. Instead, despite the question of validity for jurisdictional error being one for the courts to determine, FSCD purported to withdraw its First Application and to make the Second Application and eventually the Third Application. In other words, it determined for itself whether Mr Tozer’s determination was infected with jurisdictional error and thus not a valid determination. That was not a matter for FSCD.

92    There was a debate between the parties as to the effect of an adjudication which is alleged to be infected by jurisdictional error but which has not been the subject of any finding to that effect. That is not a question which we need to resolve on this application, although we note the terms of s 32A which gives the court power to set aside a determination, in whole or in part, where there has been jurisdictional error and also note Ceerose at [132]-[135] (at [36] above) and Seymour Whyte at [175]-[176] (at [35] above).

Proposed ground 4

93    By proposed ground 4 FSCD contends that the primary judge erred in concluding that it was an abuse of process for it to withdraw and re-submit its adjudication application under s 26 of the SOP Act.

94    At the outset we note that FSCD accepts that there may come a point at which withdrawal and resubmission of its application is an abuse of process. However, it submits that there is no abuse of process in the circumstances of this case.

95    FSCD submits that the onus of establishing abuse rested on Forte Sydney, a premise of Forte Sydney’s case was that Mr Tozer’s opinion on jurisdiction was correct and a premise of the primary judge’s reasoning was that Mr Wood’s and Mr Tozer’s determinations were within jurisdiction. FSCD contends that the primary judge should not have adopted that premise on a final basis and, to the extent his Honour did so, it was erroneous. FSCD submits that it is not aware of any authorities which support the primary judge’s approach. It says that if the finding on jurisdiction is erroneous it is binding on no one and if an adjudicator had declined jurisdiction, but it was an abuse of process to submit to a new adjudicator, it would elevate the adjudicator’s determination as to jurisdiction into a binding determination.

96    FSCD also submits that the primary judge failed to have regard to relevant matters including that Mr Wood had identified that there was an absence of evidence, that FSCD rectified that issue but Mr Tozer failed to have regard to that evidence and asked the wrong question. It submits that the primary judge failed to have regard to the policy of the SOP Act which favours minimal judicial intervention.

97    The primary judge made his finding that it was an abuse of process of the procedures of the SOP Act for FSCD to re-agitate a claim which has already been decided, and not, as FSCD contends, that it was an abuse for it to withdraw and re-submit an application. In doing so the primary judge accepted (at J [39]) that it may be that a determination vitiated by jurisdictional error is no determination at all and can be ignored. That is, his Honour accepted the proposition put by FSCD (as proposed grounds 1, 2 and 3) as correct. In making its submissions, FSCD overlooks this factor and, notwithstanding the primary judge’s approach, makes a number of submissions as to the validity of Mr Tozer’s determination. They can be put to one side.

98    The authorities establish that the SOP Act was not intended to permit repetitious use of the adjudication process for which it provides to require an adjudicator or successive adjudicators to execute the same statutory task in respect of the same claim on successive occasions: see for example Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [2] and [70] (Allsop P). The primary judge referred to Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd [2022] ACTCA 42 at [16] where Kennett J observed that the doctrine of abuse of process has been invoked by single judges in New South Wales in granting injunctive relief to restrain the pursuit of repetitious claims under the SOP Act, citing three instances.

99    FSCD states, without referring to any authority, that the doctrine of abuse of the processes of the SOP Act cannot operate in relation to a ruling on jurisdiction, attempting to distinguish the cases referred to by the primary judge which it said only involved repetitious re-agitation of matters within an adjudicator’s jurisdiction. As observed at [92] above, there is authority that a determination under the SOP Act which may be affected by jurisdictional error is not necessarily void.

100    The doctrine operates, and the primary judge’s finding was, in relation to the repetitious use of the SOP Act to adjudicate the same claim. That is a claim based on the same arrangement or contract which Mr Tozer, and before him Mr Wood, found not to be a construction contract for the purposes of the SOP Act. FSCD’s submission that it did not submit the same claim is rejected. That submission focusses on the claims that were submitted to Mr Wood and Mr Tozer, ostensibly claiming different amounts. However, Forte Sydney’s application was concerned with the First Application, Mr Tozer’s adjudication determination and the Third Application.

101    Further, the primary judge did not fail to have regard to relevant matters. His Honour was aware of the SOP Act’s policy (see J [7]-[9]) and considered earlier in his reasons whether Mr Tozer asked the wrong question, as alleged, finding that he did not.

Proposed ground 5

102    This ground concerns the primary judge’s consideration of the balance of convenience.

103    FSCD submits that in considering the balance of convenience the primary judge failed to consider a number of matters, which we address below.

104    First, FSCD says that the primary judge failed to have regard to the fact that the orders sought destroyed FSCD’s rights because they defer its access to the SOP Act until after resolution of the parties’ final rights in the proceeding at which time its rights under the SOP Act are superseded. FSCD overlooks the fact that it has made a number of claims under the SOP Act, including the application determined by Mr Wood and the First Application, both of which resulted in the same outcome. Its rights were not destroyed. It is clear from the primary judge’s reasons that he was cognisant of the effect of granting the relief sought in terms of its effect on FSCD’s ability to make further claims under the SOP Act. However, his Honour reasoned that, given the imminence of the proposed trial of the principal proceeding, the issues between the parties would, in any event, be determined “relatively soon”: J [45].

105    Secondly, FSCD says that the primary judge failed to have regard to the objects of the SOP Act which weigh heavily against intervention by the Court prior to making of a determination by an adjudicator. That is not the case. The primary judge was aware of the objects of and policy behind the SOP Act, referring to various aspects of it at J [7]-[9] and at J [39]-[40]. That his Honour did not refer to those matters expressly when addressing the balance of convenience does not mean that he was not aware of them or that he did not have regard to them. To the contrary, his Honour’s observations about those matters gave context to his findings and reasons generally.

106    Thirdly, FSCD contends that the primary judge failed to have regard to the statutory policy manifest in s 26(1) of the SOP Act. But, in circumstances where the primary judge held that Mr Tozer’s determination was not infected by any error, there was no basis to conclude that there was any right to withdraw under s 26 of the SOP Act and no occasion to consider the policy behind that section.

107    Fourthly, FSCD said that the primary judge failed to consider the strength of Forte Sydney’s right to final relief. There are two answers to this submission.

108    First, the primary judge did consider the relative strength of Forte Sydney’s case. At J [35] his Honour found that it “not only has a case at the level of a serious issue to be tried … but that Mr Tozer’s determination that he lacked jurisdiction is not vitiated by jurisdictional error and is valid”. That is, his Honour implicitly found that Forte Sydney had a relatively strong case: see Samsung at [88].

109    Secondly, his Honour considered the question of balance of convenience against the possibility that he was wrong in deciding that Mr Tozer’s determination was valid and that to submit another adjudication application was an abuse of process and that the true position was that Forte Sydney has at least a prima facie case or a serious issue to be tried in relation to those questions. That is, his Honour considered the balance of convenience on the basis that he was wrong about those matters and that in fact Forte Sydney did not have even a prima facie case in relation to the issues raised. Despite that, the primary judge found that the balance of convenience favoured the making of the orders sought.

110    Fifthly, FSCD submits that the primary judge did not consider the fact that FSCD had downstream payment obligations to its subcontractors. Forte Sydney accepts that FSCD submitted before the primary judge that the effect of the orders would be to hold FSCD out of money which it could use to pay the Builder (who could in turn use the funds to pay subcontractors). While this may not have been squarely addressed by the primary judge, as Forte Sydney submits, it was only one matter to be considered by the primary judge, there was no evidence that FSCD could not make payments without receiving funds from Forte Sydney and the evidence of FSCD’s solicitor was that the Builder had not yet claimed amounts said to be owing to subcontractors from FSCD.

111    In any event, the primary judge referred to the fact that Forte Sydney was completing the works for the development using funds borrowed from third party lenders and that the development was expected to be complete by April 2023 after which sales of the units could generate funds enabling Forte Sydney to reimburse FSCD under the development contract, if funds were owing to it. His Honour observed whether that was so would depend on the outcome of the proceeding, at the time scheduled to take place in 2023. The short point was that FSCD was not apparently incurring liabilities at the time and the development would be completed and the issues between the parties determined at trial within a short period.

112    Sixthly, FSCD contends that the primary judge failed to consider the limited prejudice to Forte Sydney in the event that the adjudication was to proceed given that, if it was correct and the incoming adjudicator lacked jurisdiction, no payment obligation would arise. FSCD did not raise this as a consideration in its written submissions relied on before the primary judge. The primary judge considered matters which the parties raised and which his Honour clearly considered to be relevant.

113    Finally, FSCD refers to a “material error of fact” made by the primary judge at J [44] where his Honour said that Forte Sydney’s solicitor “has estimated that preparing yet another adjudication response is expected to cost more than $36,000”. FSCD contends that the primary judge misunderstood the evidence. We disagree. The primary judge referred to the evidence given by Forte Sydney’s solicitor of his estimate of the cost to respond to the Second Application of approximately $36,000. That estimate was calculated based on a number of items including “a possible 50% share or 100% of the adjudicator’s fees”. The primary judge was entitled to accept the solicitor’s unchallenged evidence of the likely costs.

CONCLUSION

114    It follows that the application for leave to appeal should be dismissed. As FSCD has been unsuccessful, it should pay Forte Sydney’s costs of the application.

115    We will make orders accordingly.

Associate:

Dated:    16 February 2024

REASONS FOR JUDGMENT

DERRINGTON J:

116    I have had the advantage of reading the draft reasons of Markovic and Halley JJ. I agree with their Honours’ reasons and the orders which they propose.

Associate:

Dated:    16 February 2024