The Building and Construction Industry (Security of Payment) Act 2021 (WA) (WA SOP Act) is now approaching its fourth anniversary since its commencement on 1 August 2022.
The legislation, in this time, has gradually started to develop its own body of caselaw, with a total of 2 appellate level and 9 first instance judgments (across 7 matters), with 5 of those judgments being delivered this year (to 24 July 2026).
While WA is still a long way behind its eastern states’ counterparts, it is expected that the volume of cases will continue to expand at an increasing rate as more disputes require determination by the courts.
This article seeks to record the status of the jurisprudence by summarising (in reverse chronological order) the WA SOP Act cases we have seen so far.
Complete Hire & Sales Pty Ltd v OSB Group Pty Ltd [2026] WASC 296 (24 July 2026)
Complete Hire & Sales Pty Ltd (Complete) commenced proceedings against OSB Group Pty Ltd (OSB Group) claiming breaches of a subcontract between. The relief sought included restitution (repayment) of $1,018,527.79 which Complete had to pay to OSB Group on an interim basis under the WA SOP Act pursuant to a judgment entered on 5 March 2026.
Complete was concerned that it would never recover the amount because OSB Group would dissipate its assets. Given this, Complete applied for a freezing order against OSB Group in respect of OSB Group’s assets up to the value of $1,500,000.
Complete relied upon evidence (amongst other things) in relation to tax debts of OSB Group exceeding $1.3 million, previous companies run by the same individuals that had been wound up in insolvency and poor financial record keeping of previous companies.
However, while Complete had an arguable claim against OSB Group, Musikanth J found there was insufficient evidence of “a real or substantial danger that a judgment would be unsatisfied because assets of OSB Group might be removed from Australia or otherwise disposed of, dealt with or diminished in value” as required to enliven the Court’s jurisdiction.[1]
Musikanth J therefore did not grant the “drastic”[2] remedy of freezing OSB Group’s assets (a remedy which the courts do not grant lightly).
OSB Group also contended that, even if there was a real risk of dissipation, the Court should not grant the freezing order because (amongst other things) it would circumvent the WA SOP Act and its policy, seeking in effect a stay or injunction of the previous proceedings.[3] However, Musikanth J did not address this submission given his findings as to the evidence of risk of dissipation.
If this issue was considered, the policies of promoting prompt payment and shifting the risk of insolvency to the respondent[4]] might also have been reasons for not granting a freezing order.
Reward Interiors Pty Ltd t/s Reward Group v Tackelly No 8 Pty Ltd atf Tackelly No 8 Trust [2026] NSWCA 133 (15 July 2026)
This case concerned whether emailing a review adjudication application by way of a Mimecast link was valid service under the WA SOP Act.
In short, the NSW Court of Appeal[5] found that it was not.
The result was that the review adjudicator did not have jurisdiction to determine the application because it was not served within 1 business day as required by s 42(3) of the WA SOP Act.
Under s 113 of the WA SOP Act, any document that by or under the Act is authorised or required to be given:
- must be given in the manner (if any) provided in the contract if it is reasonably practicable to do so; or
- in any other case – must be given in a manner provided by s 113(3).
Section 113(3) lists various means of service including “by email to an email address specified by the person for giving documents of that kind to the person” (s 113(3)(d)).
The Court found in this case that s 113(3) applied because, while clause 7.1 of the contract addressed service, it did not “provide” for a “manner” of service within the meaning of s 113, stating only that a “notice” and “other communication given under the Contract documents” shall “be deemed to have been given” if posted or delivered or sent by email in the form of a letter attachment” as opposed to requiring documents to be served in a particular manner.[6]
The majority (Free and McHugh JJA,[7] Ward P dissenting)[8] found that sending an email containing a Mimecast link did not constitute giving the application “by email” within the meaning of s 113(3)(d) of the WA SOP Act, noting (amongst other things) that further steps need to be taken by the recipient to access the documents which are stored on an online repository.[9]
The Court unanimously determined that serving the review application within 1 business day as required by s 42(3) of the WA SOP Act was a precondition to the adjudicator having jurisdiction (being empowered) to determine the application.[10] This overturned the first instance finding that an adjudicator could still have jurisdiction despite service out of time. [11]
The Court of Appeal’s judgment confirms that service by cloud-sharing services (Mimecast, Google Drive, Dropbox, OneDrive etc.) will not be effective under the WA SOP Act unless provided for in the contract or if regulations are introduced altering this position.
This will not only have implications for review adjudication applications but also the service of other documents, including payment schedules, where failing to serve within time can have the drastic consequence of shutting out respondents from disputing the payment claim.
The present state of the law is also that adjudication and review adjudication applications must be served within 1 business day to be valid. However, this looks set to change with amendments that are currently before parliament removing this requirement.[12]
Co-operative Bulk Handling Ltd v Martinus Rail Pty Ltd [2026] WASCA 82 (19 June 2026)
Co-operative Bulk Handling Ltd (CBH) engaged Martinus Rail Pty Ltd (Martinus) under a contract to construct rail infrastructure at Broomehill, Western Australia.
Clause 47.4 of the contract provided that if certain communications are received on a non-business day, they are taken to be received at 9:00am the next business day.
On Saturday, 31 August 2024, Martinus emailed a payment claim to CBH’s representatives claiming $22,646,617.21 (excl. GST). On 24 September 2024, 16 business days later, CBH provided a payment schedule certifying $5,425,550.66 (excl. GST) as payable.
The WA SOP Act requires that a payment schedule be given within 15 business days of the payment claim or such lesser time provided by the contract.[13] If the respondent fails to do so, it becomes liable to pay the full claimed amount.[14]
The question for the Court of Appeal was whether clause 47.4 had the effect of deeming the payment claim (emailed on a Saturday) to be served the following business day. If it did, the payment schedule was within time. If not, it was late.
The Court of Appeal upheld the first instance decision[15] which answered this question in the negative, finding CBH liable to pay the full claimed amount as the payment schedule was given out of time.
The arguments centered around reg 23(d) of the Building and Construction Industry (Security of Payment) Regulations 2022 (WA) which provides that emails are taken to be given when the email is taken to be received in accordance with s 14 of the Electronic Transactions Act 2021 (WA) (ETA). Section 14(1) of the ETA provides that “unless otherwise agreed between the originator and addressee of an electronic communication” the time of receipt of the electronic communication is as prescribed by ss 14(1)(a) or (b) of the ETA.[16]
CBH argued that the words “unless otherwise agreed” in s 14 of the ETA permitted CBH and Martinus to agree to the deemed time of receipt under clause 47.4 of the contract.
However, the Court disagreed, finding that reg 23 was only intended to apply to the statutory rules about when documents are received contained in ss 14(a) and (b) of the ETA but not to give effect to agreements about the time for receipt of documents.[17]
The Court made this finding based upon its construction of the text of reg 23, although, interestingly, it did not have any difficulty in principle with regulations (hypothetically) providing that parties could agree to a payment claim being taken to be received the next business day.[18]
Martinus also raised an argument that clause 47.4, upon a proper construction, only applied to documents given under the contract but not payment claims served under the WA SOP Act. However, the Court did not determine this issue given it dismissed the appeal for the reasons identified above.[19]
The case was the first WA case showing the harsh consequences of not providing a payment schedule within time and the nuances of calculating timeframes under the legislation. As a result of the late payment schedule, CBH became liable to pay the full $22,646,617.21 (excl. GST) without any ability to dispute the claim on its merits.
(Note: A write up of the first instance decision with further discussion can be accessed here).
Aaro Group Pty Ltd v Monadelphous Engineering Associates Pty Ltd [2026] WASC 143 (21 April 2026)
Monadelphous Engineering Associates Pty Ltd (Monadelphous) applied for a stay preventing Aaro Group Pty Ltd (Aaro) from enforcing two adjudication determinations awarded in its favour totalling $3,290,160.61 (excl. GST).
Monadelphous applied for the stay on the basis that upon a final determination of the parties’ rights the adjudicated amounts would have to be repaid[20] but that Aaro would not have the capacity to do so. Monadelphous had commenced proceedings disputing that the adjudicated amounts were payable upon a final determination of rights and claiming damages that it said “dwarfs” the judgment debts.[21]
Principal Registrar Griffin did not grant the stay, leaving Aaro to enforce the determinations.
The Principal Registrar, in doing so, also determined that evidence of things said or done in the course of an adjudication relied upon by Monadelphous was inadmissible pursuant to s 55(4) of the WA SOP Act, which does not permit such evidence to be used in civil proceedings arising under a construction contract.[22] This, in conjunction with other objections that were upheld, meant that most of the evidence adduced by Monadelphous was inadmissible.[23] Monadelphous was unable to show special circumstances justifying the stay.[24]
The application for a stay on this basis (sometimes called a Grosvenor stay)[25] was the first of its kind under the WA SOP Act.
The case confirmed principles applied in eastern states cases that a stay will only be granted where it is certain or almost certain that the respondent will suffer irreparable prejudice because of a risk that the contractor will be unable to repay an adjudicated amount if ordered to do so.[26]
This is a difficult bar to meet and it will rarely be the case that a respondent can stave off enforcement of an adjudication determination on this basis.
The principles are consistent with the policy of placing the risk of insolvency on respondents.[27]
The WA SOP Act does not, however, permit corporate claimants that are in liquidation to advance claims under the Act.[28]
Cooper & Oxley Group Pty Ltd v Koitka [2026] WASC 4 (15 January 2026)
Cooper & Oxley Group Pty Ltd (Cooper & Oxley) sought judicial review of adjudication determination in favour of a subcontractor, Caledonia Contracting Pty Ltd (Caledonia), on the ground that the adjudicator failed to consider matters it had raised in its payment schedule and adjudication response.
The matters related to contractual rights following termination of the subcontract and deductions for backcharges, defect rectification costs and amounts due to Cooper & Oxley.
Lemonis J, upon review of the determination, payment schedule and adjudication response, concluded that the adjudicator did not consider the claimed deductions for backcharges ($48,420.16) and amounts due to Cooper & Oxley ($10,407.96), but that the adjudicator did consider rights following termination and the defect rectification ($3,415.90).
The determination was therefore affected by jurisdictional error in respect of the backcharges and amounts due to Cooper & Oxley.
The judgment identified the following principles:
- An adjudicator’s decision is not subject to appeal or amenable to jurisdictional review for non-jurisdictional error of law (such that review requires the applicant to show a jurisdictional error);[29]
- A jurisdictional error can include “misapprehending or disregarding the nature or limits of the decision maker’s functions or powers” and “failing to take into account a consideration that the statutory required to be considered or taking into account a consideration that the statute mandated be ignored”; [30]
- If an adjudicator makes an error in construing, and then applying, a construction contract, that error will not constitute jurisdictional error; [31]
- A failure by the adjudicator to take into account a respondent’s response to a claim, including the merits of any set off, constitutes a jurisdictional error (where it is not inconsequential and affects the exercise of power by the adjudicator). [32]
His Honour also commented on the way the parties should prepare materials submitted in an adjudication, saying “[i]t is incumbent upon the parties to indicate the issues and matter they contend the adjudicator needs to consider” and “an adjudicator is not required to trawl through hundreds of pages of material put forward by the parties to discern what points might be raised”.[33] He also said that “if a party is represented by lawyer in an adjudication, an adjudicator is ordinarily entitled to proceed on the premise that the lawyer’s submissions identify the ambit of the issues and matters that the party wishes to raise in the adjudication”.[34]
LHRE Group Pty Ltd v Complete Hire & Sales Pty Ltd [2025] WADC 81 (12 November 2025)
LHRE served a payment claim on Complete Hire & Sales Pty Ltd (Complete) under the WA SOP Act claiming $81,934.64 (inc. GST) for labour provided for a hotel and associated facilities in Derby, Western Australia. Complete did not provide any payment schedule in response but refused to pay the claimed amount.
LHRE commenced proceedings seeking judgment against Complete for the full claimed amount under s 26 of the WA SOP Act (on account of no payment schedule being provided).
Complete disputed LHRE’s claim on the basis that there was no construction contract between LHRE and Complete for the purposes of the WA SOP Act.
Complete contended that, instead, the relevant contract for the supply of labour was between it and another company, OSB Group Pty Ltd (OSB Group), which was run by the same individuals as LHRE. If the contract was with OSB Group, and not LHRE, then the payment claim given by LHRE would not have been valid under the WA SOP Act.
The uncertainty as to which entity entered into the contract resulted from the way that the contract was formed, it being (in the words of Wallace DCJ) “formulated within a matter of days and performed within 18 days” and “fast moving, relatively informal and negotiated in an unsophisticated manner”.[35]
The Court’s task was to unpack the verbal conversations, emails and the parties’ conduct and determine whether Complete entered into the agreement with LHRE or OSB Group.
In considering this question, Wallace DCJ placed weight on an email sent to Complete attaching LHRE client terms and conditions which accompanied a credit application (although the application was never signed). She also had regard to Complete’s post-contractual conduct[36] in not raising any concerns with an invoice being issued by LHRE despite the exchange of communications about the invoice after it was issued.
Wallace DCJ concluded that LHRE was the contracting entity and therefore LHRE had given a valid payment claim under the WA SOP Act. Complete was liable to pay the claimed amount as a result.
The case illustrates the complexities that can arise when entering into contracts on an informal basis, in this case, requiring and analysis of detailed evidence about the parties’ conduct in labour hire arrangement.
The trial and final judgment also followed an unsuccessful summary judgment application by earlier in the proceeding.[37] The application was dismissed at the time because there was sufficient doubt about the contracting entity for Complete to have an arguable defence (albeit ultimately losing at trial on the balance of probabilities). If the contracting parties were clearly identified in a more formal contract, perhaps LHRE could have succeeded in its summary judgment application and avoided having to present its evidence at a trial one year later.
Grounded Construction Group Pty Ltd v KW Civil & Construction Pty Ltd [2025] WASC 307 (6 August 2025)
Grounded Construction Group Pty Ltd (Grounded Construction) applied to set aside a statutory demand[38] served by KW Civil & Construction Pty Ltd (KW Civil) in respect of a debt arising from an adjudication determination in KW Civil’s favour for $1,031,136 (incl GST).
Prior to issuing the statutory demand, Grounded Construction has instituted legal proceedings claiming amounts that partly overlapped with amounts that were the subject of the adjudication determination underlying the statutory demand (Recovery Proceeding).
Grounded Construction applied to set aside the statutory demand on the basis that:
- the statutory demand was an abuse of process where KW Civil had also instituted the Recovering Proceeding; and
- Grounded Construction had offsetting claims against KW Civil and the statutory demand should be varied to reduce the demanded amount by the amount of those offsetting claims.
Lundberg J found that issuing the statutory demand was an abuse of process.
The reason that it was an abuse of process was because KW Civil maintained two proceedings which have differing objectives. The purpose of a statutory demand is to obtain a presumption of insolvency; whereas the purpose of recovery proceedings is to compel payment of a debt.[39] His Honour also had concerns about the impact of the parties’ costs and use of court resources resulting from the duplication of proceedings.[40]
His Honour made this finding notwithstanding that, upon serving the statutory demand, KW Civil sought an order to the effect that the Recovery Proceeding be stayed and indicated it would amend its claim so that there would be no overlap.
Lundberg J also rejected an argument by KW Civil that Grounded Construction could not raise its offsetting claims because they were the subject of the adjudication underlying the statutory demand.[41] This was in circumstances where the adjudicator had rejected the offsetting claims entirely (although noting the position would be different if the adjudicator had already applied deductions for the offsetting claims).[42]
Finally, Lundberg J found that the parties could not rely upon evidence of submissions in the adjudication to determine the application to set aside the statutory demand.[43] This was in accordance with s 55(4) of the WA SOP Act that provides anything said or done in an adjudication is not admissible evidence in proceedings arising under a construction contract.
The case serves as a reminder that the statutory demand process is not intended as a debt recovery mechanism and that a statutory demand may be set aside as an abuse of process (in this case due to parallel proceedings for recovery of the amount claimed). The case also confirms that a debtor can have a statutory demand set aside (or varied) by raising offsetting claims against a creditor even where those claims were the subject of an adjudication on which the statutory demand is based.
Tackelly No 8 Pty Ltd as trustee for Tackelly No 8 Trust v Reward Interiors Pty Ltd t/as Reward Group [2025] NSWSC 300 (11 April 2025)
Tackelly No 8 Pty Ltd (Tackelly) contended that the original adjudicator[44] committed a jurisdictional error in determining that Reward Interiors Pty Ltd (Reward) was entitled to the return of bank guarantees totalling $1,250,000 provided as performance security under the contract.
The adjudicator made his determination under s 58 of the WA SOP Act, which provides that a payment claim may seek the release of performance security “to which the progress payment relates”[45] and empowers an adjudicator to “require the release of performance security that is no longer required because the obligations secured by the performance security have been performed”[46] and where “it is due for release in accordance with the relevant construction contract”.[47]
The adjudicator determined that Tackelly should return bank guarantees because Tackelly had repudiated the contract, entitling Reward to terminate.[48]
Tackelly argued that s 58(1) of the WA SOP Act was not satisfied because the bank guarantees were not performance security was not performance security “to which the progress payment relates”. It was argued that the only way the guarantees could be released was if there was completion of the contract work and a final certificate had been issued, because then the work in the payment claim would “relate” to the securities.[49]
However, Peden J found that there was no jurisdictional error in relation to satisfying s 58(1) because it was a matter for the adjudicator to determine and not an objective criteria that had to be satisfied for the adjudicator to have jurisdiction.[50] In other words, it was for the adjudicator to decide whether s 58(1) was satisfied. This was the case irrespective of whether the adjudicator’s determination was objectively correct.[51]
Tackelly also contended that the performance security was not “due for release in accordance with the relevant construction contract”. This, however, was not determined at the hearing and left for a future hearing.[52]
Peden J also found that the review adjudicator had jurisdiction despite service not being validly effected within 1 business day of the application by Mimecast link. This was overturned by the Court of Appeal as discussed above.[53]
OSB Group Pty Ltd v Complete Hire & Sales Pty Ltd [2024] WASC 310 (28 August 2024)
OSB Group Pty Ltd (OSB Group) applied for summary judgment[54] against Complete Hire & Sales Pty Ltd (Complete) claiming a statutory debt by reason of Complete’s failure to provide a payment schedule in response to a payment claim.
Complete contended in defence that OSB Group engaged in misleading or deceptive conduct under the Australian Consumer Law (ACL)[55] in relation to resource required to perform and complete certain construction work and that Complete was induced by that conduct to permit OSB to mobilise and perform part of the work.
Complete claimed that it suffered loss and damage as a result because OSB Group ultimately did not mobilise requiring Complete the undertake works itself.
Complete contended that it could raise such a defence, including by way of equitable set-off.
Musikanth J found that there was a serious question to be tried as to whether Complete was entitled to raise such a defence under the ACL. This was despite that s 27(3)(b)(ii) of the WA SOP Act provides that in proceedings for the recovery of a statutory debt the respondent is not entitled to raise any defence “in relation to matters arising under” the construction contract.
His Honour, in making this finding, accepted Complete’s submission that s 27(3)(b)(ii) of the WA SOP Act was inconsistent with the ACL to the extent that it disallowed Complete to raise its defence for misleading or deceptive conduct.[56] Given this inconsistency, s 109 of the Australian Constitution has the effect that the federal ACL prevails over the state WA SOP Act so as to allow Complete to raise the defence.[57]
Complete also contended there was a serious question to be tried as to whether there was a “construction contract” for the purposes of the WA SOP Act. However, Musikanth J did not accept this submission having regard to the definition of construction contract in the WA SOP Act (which encompasses “arrangements” as well as contracts) and that Complete had allowed OSB Group to mobilise on site.[58]
The case raises questions about the extent to which respondents may rely upon the ACL to defend a statutory debt claim under state security of payment legislation. This has potential to frustrate the purposes of the WA SOP Act which intended such claims to be brought without any set-off or cross claim or defence arising in relation to matters arising under the construction contract.
[1] Complete Hire & Sales Pty Ltd v OSB Group Pty Ltd [2026] WASC 296 (Complete Freezing Order Application) at [20] and [41] – [53].
[2] Complete Freezing Order Application at [19].
[3] Complete Freezing Order Application at [55].
[4] Martinus Rail Pty Ltd Qube RE Services (No 2) Pty Ltd [2025] NSWCA 49 at [293].
[5] The New South Wales Court had jurisdiction under the s 9 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) and s 4(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) and neither party (who were both based in New South Wales) made an application for a transfer to Western Australia.
[6] Reward Interiors Pty Ltd t/s Reward Group v Tackelly No 8 Pty Ltd atf Tackelly No 8 Trust [2026] NSWCA 133 (Reward Interiors Appeal) at [100] – [104] (per Ward P, McHugh and Free JJA agreeing at [121] and [131] respectively). Ward P’s reasoning was that clause 7.1 was merely facilitative in that it “deemed” documents to be given where given in accordance with that clause rather than requiring documents to be served in a particular manner. Further, the adjudication review application was not a document “given under the Contract documents” as those words were used in clause 7.1.
[7] Reward Interiors Appeal at [126] – [147] (per Free JA, McHugh JA agreeing at [122]).
[8] Reward Interiors Appeal at[108] – [114]. Ward P noted that the definition of “give” in s 113(1) of the WA SOP Act included “otherwise provided” which, in her view, was sufficiently satisfied by providing the Mimecast link.
[9] Reward Interiors Appeal at [144] (per Free JA, McHugh JA agreeing at [122]).
[10] Reward Interiors Appeal at [63] – [74] (per Ward P, McHugh and Free JJA agreeing at [120] and [124] respectively).
[11] Tackelly No 8 Pty Ltd v Reward Interiors Pty Ltd t/as Reward Group [2025] NSWSC 300 (Reward Interiors First Instance) (Peden J).
[12] Building and Construction Industry (Security of Payment) Amendment Bill 2026 (WA), ss 8, 9, 10 and 11. The bill will (if passed in the form as at the date of writing) remove the requirement to give adjudication applications, review adjudication applications, adjudication responses and review adjudication responses to the other party within 1 business day and provides that such applications and responses are not invalid “merely” because they are not given to the other party.
[13] WA SOP Act, s 25(1)
[14] WA SOP Act, s 26.
[15] Martinus Rail Pty Ltd v Co-operative Bulk Handling Ltd [2025] WASC 373 (Palmer J).
[16] Section 14(1)(a) of the ETA provides: “the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee an electronic address designated by the addressee”. Section 14(1)(b) provides: “the time of receipt of the electronic communication at another electronic address of the addressee is the time when both – (i) the electronic communication has become capable of being retrieved by the addressee at that address; and (ii) the addressee has become aware that the electronic communication has been sent to that address”.
[17] Co-operative Bulk Handling Ltd v Martinus Rail Pty Ltd [2026] WASCA 82 (Martinus Appeal) at [61] – [80].
[18] Martinus Appeal at[82] and [84]. This raises the interesting question about whether or the extent to which the regulations can extend the time period to provide a payment schedule in the WA SOP Act. If parties could hypothetically agree to any deemed time for service, they could (in effect) extend the time for providing a payment schedule.
[19] Martinus Appeal at [84].
[20] Adjudication determinations under the WA SOP Act are made on an interim basis, such that the adjudicated amount must be paid immediately, but that it will be subject to a final determination of the parties’ rights through litigation, arbitration or other applicable process. If, upon a final determination, it is found that the claimant is not entitled to the adjudicated amount, the respondent can seek restitution (repayment) of that amount.
[21] Aaro Group Pty Ltd v Monadelphous Engineering Associates Pty Ltd [2026] WASC 143 (Aaro Group) at [17].
[22] Aaro Group at [19] – [30].
[23] Aaro Group at [40].
[24] Aaro Group at [41] – [46].
[25] Grosvenor Constructions (NSW) Pty Ltd (in administration v Music & Ors (2005) 21 BCL 266. Also see: Andrew Blyth, “Payment Disputes Under the Building and Construction Industry (Security of Payment) Act 2021 (WA”) (available at www.blythlegal.com/sopahandbook), pages 52 -53.
[26] Aaro Group at [42], citing A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144 at [26]; Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33 at [30] – [32]; Veolia Water Solutions v Kruger Engineering [No 3] [2007] NSWSC 549 at [72] – [75].
[27] Martinus Rail Pty Ltd Qube RE Services (No 2) Pty Ltd [2025] NSWCA 49 at [293].
[28] WA SOP Act, s 68.
[29] Cooper & Oxley Group Pty Ltd v Koitka [2026] WASC 4 (Cooper & Oxley) at [41], citing Perrinepod Pty ltd v Georgiou Building Pty Ltd [2011] WASCA 216 at [118]; & Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 at [43].
[30] Cooper & Oxley at [45], citing Total Eden Pty Ltd v Charteris [2018] WASC 60 (Total Eden) at [30].
[31] Cooper & Oxley at [44], citing Total Eden at [29].
[32] Cooper & Oxley at [46] – [47], citing Total Eden at [63] and also Rodger v De Gelder [2015] NSWCA 211.
[33] Cooper & Oxley at [50].
[34] Cooper & Oxley at [50].
[35] LHRE Group Pty Ltd v Complete Hire & Sales Pty Ltd [2025] WADC 81 (LHRE Group) at [238].
[36] Post-contractual conduct being admissible in this case because the Court had to determine whether a contract was entered into between LHRE and Complete: LHRE Group at [185] – [186].
[37] LHRE Group Pty Ltd v Complete Hire Sales Pty Ltd [2024] WADC 61.
[38] A creditor may serve a statutory demand on a debtor company under s 459E of the Corporations Act 2001 (Cth) demanding payment of the debt. If the debtor does not comply with the statutory demand or apply to the courts to set it aside within 21 days, the creditor may apply to wind up the debtor company (s 459P(1)(b)) on a presumption that the debtor is insolvent (s 459C).
[39] Grounded Construction Group Pty Ltd v KW Civil & Construction Pty Ltd [2025] WASC 307 (Grounded Construction)at [258] – [263].
[40] Grounded Construction at [264].
[41] Grounded Construction at [156] – [201].
[42] Grounded Construction at [190], citing J Group Constructions Pty Ltd [2015] NSWSC 1607 where Halley J expressed the view at [82] that “to the extent that the whole or any part of an offsetting claim had been taken into account by an adjudicator because it had been set off against amounts determined to be owing under progress claims, it has thereby reduced the adjudicated amount and cannot logically also be relied upon as an offsetting claim”.
[43] Grounded Construction at [278] – [295].
[44] The Reward Interiors Appeal discussed above solely concerned the review adjudication application, and not the original adjudication determination.
[45] WA SOP Act, s 58(1).
[46] WA SOP Act, s 58(3).
[47] WA SOP Act, s 58(4).
[48] Reward Interiors First Instance at [36].
[49] Reward Interiors First Instance at [41].
[50] Reward Interiors First Instance at [43] – [53].
[51] Reward Interiors First Instance at [46]. (Assuming it was not subject to judicial review on other grounds such as that the determination was irrational or not made in accordance with the Act).
[52] Reward Interiors First Instance at [53]. Also see Tackelly No 8 Pty Ltd as trustee for Tackelly No 8 Trust v Reward Interiors Pty Ltd t/as Reward Group (No 2) [2025] NSWSC 545, where Tackelly obtained an interlocutory injunction requiring 3 business days’ notice or further order of the Court before Reward could enforce the determination so as to maintain the status quo pending determination of the issue.
[53] The Court of Appeal found that service within 1 business day was a precondition to the review adjudicator having jurisdiction, whereas Peden J did not find it was a precondition (and thus invalid service by Mimecast link did not mean the adjudicator did not have jurisdiction).
[54] A party may apply for summary judgment seeking orders for judgment to be entered where there is “no real question to be tried”. If judgment is entered on this basis, it will save the parties going to a full trial (and the steps leading up to a trial) where all of the evidence is presented. However, the standard that must be met is difficult, essentially requiring the applicant to show the other party has no arguable case.
[55] Competition and Consumer Act 2010 (Cth), Schedule 2, s 18.
[56] OSB Group Pty Ltd v Complete Hire & Sales Pty Ltd [2024] WASC 310 (OSB Group) at [63] – [66].
[57] OSB Group at [68] – [72].
[58] OSB Group at [36] – [37].