Welcome to The Critical Path, HWL Ebsworth Lawyers’ Construction and Infrastructure newsletter featuring the latest developments in construction law, to help you stay on the critical path!

Setting aside statutory demands for adjudicated amounts under the SOP Act – Re Duke Ventures Wellington Street Pty Ltd (ACN 645 670 480) 2025 VSC 75

This article was written by Leighton Moon, Partner, Fin Neaves, Senior Associate, and Campbell Dawes, Law Graduate.

This case sets out the relevant principles when the Court looks at setting aside a statutory demand for an adjudicated amount. Particularly, the Court confirms that there is a low evidentiary burden to prove that that there are viable offset claims which deserve a hearing.

This case is one of many on the interaction and competing objectives of Commonwealth corporations legislation and the various States’ security of payment legislation.

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The Victorian Court of Appeal confirms the State’s subrogation rights under s137F of the Building Act 1993 (Vic)

This article was written by Paul Graham, Partner, Oliver Keats, Associate, and Campbell Dawes, Law Graduate.

In State of Victoria v L.U. Simon Builders Pty Ltd [2025] VSCA 52, the Victorian Court of Appeal clarified the extent of the State’s subrogation rights under s137F of the Building Act 1993 (Vic) (Building Act).

The decision confirms that when the State funds cladding rectification works on privately owned buildings, it may be subrogated to the rights of both the owner’s corporation and the individual lot owners irrespective of whether the latter received direct financial payments.

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Estop right there! Why final certificates may not be the end of the road for builders

This article was written by Marko Misko, Partner, Konrad Anderson, Special Counsel and Miranda Eglezos, Law Graduate. 

In Merkon Constructions Pty Ltd v Residence Co Pty Ltd¹ which involved a dispute relating to the construction of an apartment building, the Supreme Court of Victoria decided that:

• the existence of a builder side deed prohibiting the builder from maintaining or taking security interests over the relevant property, did not render a subsequent deed of variation to the construction contract illegal or unenforceable merely because it commissioned a breach of the side deed; and
• the builder was not estopped from pursuing further payment claims following its signature of a final certificate under the construction contract.

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“Long stop” gets the short-start from the Supreme Court

This article is written by David Vaughan, Partner, Nadim Sara, Associate, and Mark Jones, Solicitor.

The NSW Supreme Court’s judgment in The Owners – Strata Plan No. 81376 v Dydlam Developments² highlights the power of the so-called “Long Stop” provision in the Home Building Act 1989 (NSW), and how an ineffective Occupation Certificate issued under section 109H(2) of the Environmental Planning and Assessment Act 1979 (NSW) will be considered by the Court. The decision demonstrates that claims brought by insured claimants can be “long stopped” despite a potentially ineffective Occupation Certificate.

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The interplay of transitional provisions in the WA Security of Payment legislation: A case analysis of Sovereign Building Company Pty Ltd v Sheehan Group Pty Ltd [2025] WASC 11

This article was written by Kate Morrow, Partner, Michael Harris, Special Counsel and Elizabeth Lester, Solicitor.

This article examines the Supreme Court of Western Australia’s recent decision in Sovereign Building Company Pty Ltd v Sheehan Group Pty Ltd [2025] WASC 11.

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Extended limitation periods for contribution claims in Australia

This article was written by Natasha Breach, Partner and Elizabeth Lester, Law Graduate.

In construction disputes, allocating responsibility amongst multiple parties can give rise to complex legal proceedings. In many cases, a defendant may seek to bring a contribution claim against a third party, in the same proceedings or after judgment has been entered in the primary proceedings. As the issues crystallise and assessments regarding liability evolve, and the parties grapple with the procedural twists and turns in the judicial or arbitral system, time ticks on and the issue of when a limitation period starts and ends for contribution claims is of considerable importance.

This article is intended as a quick reference guide to help those in the industry navigate limitation periods, including for commencing contribution claims against joint tortfeasors.

For more information on whether parties can contract out of limitation periods, please read our article, here.

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Beware when calculating time periods based on deemed date of service clauses, whether under SOPA or otherwise

This article was written by Brian Rom, Partner and Oliver Clark, Law Clerk.

The time periods for taking steps under the security of payment legislation in most States and Territories are punishingly short and, above all, unforgiving. Failure to respond to a payment claim with a payment schedule within the prescribed period of time (10 business days in many Australian jurisdictions) can, for example, result in summary judgment or expensive litigation to reverse that outcome. In the interests of certainty and to avoid situations where payment claims served after hours go unnoticed, many construction contracts contain provisions that deem notices served outside of ordinary working hours to be served the following day. Time is then calculated from after that day.

On 12 June 2025, Stevenson J in Sharvain Facades Pty Ltd (Administrators Appointed) v Roberts Co (NSW) Pty Ltd, held that such a deeming clause was inconsistent with provisions in the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) and was therefore void under the “no contracting out” provisions in section 34 of the Act.

We discuss potential criticisms of His Honour’s finding. The decision impacts other jurisdictions with similar SOPA provisions to those considered by the court, including Victoria, Queensland, and Western Australia. It has been reported that Roberts Co have appealed the decision. Subject to that appeal and until courts in those jurisdictions have given the matter consideration, parties should err on the side of caution and calculate time periods under the legislation and for non-adjudication matters as if these deeming provisions do not apply.

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Adjudication decision declared void: Lessons learned from Forme Two Pty Ltd v McNab Developments (Qld)

This article was written by Colin Harris, Partner and Zeena Lederhose, Solicitor.

The Supreme Court of Queensland’s decision in Forme Two Pty Ltd v McNab Developments (Qld) Pty Ltd [2025] QSC 96 highlights the critical importance of adhering to statutory requirements in construction contracts. In this case, Forme Two Pty Ltd sought to have an adjudication decision declared void, alleging that the payment claim did not comply with the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act). The Court found that the payment claim failed to meet the requirements of section 75(2)(b) of the BIF Act, which mandates that a payment claim be issued within six months after the work or supply of goods, to which the subject of the payment claim was last carried out or supplied. As a result, because no payment was claimed for work carried within six months before the payment claim, the adjudicator lacked jurisdiction, rendering the adjudication decision void.

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Intentional departure – The Court of Appeal confirms approach to resolving contractual ambiguity

This article was written by Colin Harris, Partner and Alyce Walker, Solicitor.

The recent Queensland Court of Appeal decision in Pacific Diamond 88 Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd [2025] QCA 50 has confirmed the decision of the primary judge, which had regard to deletions to the standard form of AS4902:2000 and antecedent negotiations between the parties to resolve contractual ambiguity.

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SOPA claimants gain ground: Jurisdictional error remains a high bar

This article was written by Lucas Keogh, Partner, Rhys Moran, Senior Associate, and Edward Wong, Associate.

The Court of Appeal’s decision in Martinus Rail Pty Ltd v Qube RE Services (No.2) Pty Ltd overturned a first instance Supreme Court decision which had upheld several complaints of jurisdictional error and set aside parts of two Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) adjudication determinations.

In allowing the appeal and dismissing the cross appeal, the Court emphasised SOPA’s overarching objective of “pay now, fight later” and confirmed that jurisdictional error claims for such adjudications must meet a high threshold by demonstrating a substantial denial of procedural fairness.

This decision also highlights the importance of drafting payment schedules that include all reasons for non-payment and are relatively simple for an adjudicator to understand.

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¹ [2025] VSC 151.
² [2025] NSWSC 438.