SOPA Case Update: No overlap, no problem

The recent decision of the South Australian Court of Appeal in Goyder Wind Farm 1 Pty Ltd v GE Renewable Energy Australia Pty Ltd & Ors [2025] SASCA 39 provided much-needed guidance on the circumstances in which a contractor may re-agitate claims that have already been adjudicated under the security of payment legislation.

Background

The principal, Goyder Wind Farm 1 Pty Ltd (Goyder) entered into contracts with the contractor, GE Renewable Energy Australia Pty Ltd and Elecnor Australia Pty Ltd (GE-Elecnor) for the construction of a wind farm.

GE-Elecnor claimed it was entitled to extensions of time and delay costs attributable to Goyder's delay in obtaining environmental approvals. GE-Elecnor subsequently issued three separate payment claims, two of which proceeded to adjudication under the Building and Construction Industry Security of Payment Act 2009 (SA) (the SA Act). Goyder sought an injunction preventing GE-Elecnor from adjudicating the third payment claim.

Supreme Court decision

Goyder sought judicial review, seeking to quash the second adjudication determination, arguing that the adjudicator failed to apply section 22(4) of the SA Act and wrongfully allowed GE-Elecnor to re-agitate the claim for delay costs. It also sought to restrain GE-Elecnor from taking any steps to progress the third payment claim.

The primary judge found there was no overlap between the costs awarded in the first and second claims, thus section 22(4) of the SA Act did not apply. Even if it had, the court held it would not constitute jurisdictional error.

The primary judge held that neither the contract nor the SA Act required that all (non-overlapping) delay costs arising from the same delay event be included in a single progress claim. Accordingly, it was not an abuse of process for GE-Elecnor to omit certain aspects of the delay costs from an earlier payment claim.  

Goyder appealed the primary judge's decision.

Issues

The Court of Appeal considered:

1. whether the principle of Anshun estoppel, whether described in that way or in terms of an abuse of process, applies to subsequent payment claims and adjudication determinations under the SA Act; and
2. if so, whether that principle, however described, applied to prevent GE-Elecnor from making and prosecuting the second payment claim for delay costs in respect of extension of time claims made by GE-Elecnor.

Appeal decision

The appeal was dismissed, affirming the primary judge's decision.

In addressing the applicability of common law Anshun estoppel, the Court of Appeal held neither the common law concept of issue estoppel nor the extended doctrine of Anshun estoppel is applicable to subsequent payment claims and adjudication determinations under the SA Act.¹  This conclusion was based on the interpretation of the SA Act, in particular section 32.

The Court of Appeal found that, whilst the common law doctrines of estoppel do not apply, there remains scope for a doctrine of preclusion under the SA Act regarding conduct that is an abuse of the process of the SA Act.²  That is, it is an abuse of process of the SA Act if a party purported to re-agitate a claim which had already been decided.

In addressing GE-Elecnor's non-overlapping delay cost claims, the Court of Appeal held that such claim would not amount to an abuse of the process of the SA Act and therefore can validly be made in separate progress payment claims. The SA Act does not require all non-overlapping components of delay costs to be claimed in a single progress payment claim.

The Court of Appeal found that, having regard to the provisions of section 3 of the SA Act (i.e. the object of the act), the SA Act aims to ensure a contractor's imperative for timely progress payments. Although the payment claims could have been made together earlier, it does not necessarily conflict with this objective or the principle of expeditiously and finally determining progress payment claims.³

Key takeaways

The key takeaways are:

1. this case reinforces the procedural flexibility provided under the security of payment legislation. Parties are not barred from making non-overlapping delay cost claims on the basis of the doctrines of issue and Anshun estoppel under the security of payment legislation;
2. the Court confirmed that the re-agitation of previously determined claims is not permitted under the security of payment legislation.  However, it is permissible to claim costs arising from a single delay event in subsequent payment claims or adjudications, provided there is no overlap in the costs claimed; and
3. this case aligns with a continuing trend in NSW Court of Appeal decisions to adopt a narrow approach to challenges against adjudicators' determinations. Accordingly, the scope to successfully challenge such determinations remains limited.

If you have any questions or would like to know more, please get in touch with our Construction and Infrastructure team.

¹ [120] – [121].

² [122].

³ [133] – [137].

Authors

Phillip Coady | Partner | +61 2 9020 5670 | pcoady@tglaw.com.au

Daniel Oh | Senior Associate | +61 2 9020 5674 | doh@tglaw.com.au

Alexandra Stevenson | Lawyer | +61 2 9020 5676 | astevenson@tglaw.com.au