It has long been said that legislation should be interpreted according to the intent of Parliament.^[1] Let us look at a particular example of how that works out in practice. Let us look at section 32(1)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW). This was, of course, passed by the Parliament of New South Wales, and then by other State Parliaments in the same form, including section 32 of the South Australian Act and section 38 of the ACT Act.

It provides that nothing in the procedural part of the Act (adjudication, and so forth) affects any right that a party has under the substantive part of the Act (the right to progress payments). At first blush, it is not entirely obvious what that means. In the ACT Court of Appeal in Harlech^[2], it was thought, bizarrely, that this meant that a right to a progress payment is not affected by previous adjudication. That is not what the words say at all, and I thought it might be interesting to examine this a bit in terms of intention.

I do not have any grandmothers; they both died a long time ago. But if I did, I would be comfortable betting their lives that not a single one of the parliamentarians sitting in South Australia or in the ACT in 2009 (when their Acts were passed) had the faintest idea what the effect of this provision was. Insofar as there was any intellectual Continue reading →

This case is by way of update on the case of Goyder v GE-Elecnor, which is of some importance to the application of the 3 principles of preclusion (res judicata, issue estoppel and Anshun) to security of payment in Australia. It is a case I know well, having acted as leading counsel at first instance in the Supreme Court of South Australia, and in the appeal, and now having prepared the application for leave to appeal to the High Court.

First, some background. Goyder is building a wind farm. It engaged a joint venture consisting of GE and Elecnor for the project. It should have started in March 2022, but there was a short delay at the beginning of the project, which held up access to the site. The contract was in a fairly typical form; the contractor was entitled to an extension of time in certain circumstances, and to delay costs in a more limited set of circumstances. The contractor claimed an extension of time of 118 days. There was the usual regime for notices and for the parties to meet to try to resolve things. That meeting was held in March 2023, but did not resolve things. The contractor eventually gave notice of arbitration in December 2023, claiming an extension of time of 118 days in delay costs of some $61 million for various categories of alleged cost.  That arbitration continues to struggle on.

Meantime, conscious no doubt that these arbitrations take a while, the contractor made a payment claim in February 2024 under the Building and Construction Industry Security Of Payment Act 2009 (SA) including a claim for delay costs of some $15 million, being some of that $61 million. That claim led to an adjudication in which the contractor was partially successful. And then in April 2024, the contractor made a payment claim for some $26 million for another chunk that of those delay costs. These chunks mirrored almost exactly the categories of claim in the earlier notice of arbitration. That second payment claim also led to an adjudication in which, again, the contractor was partially successful. In July 2024, the contractor made a 3rd payment claim for some $21 million by way of delay costs, this time overlapping somewhat with its first claim. And then in December 2024, the contractor made a 4^th payment claim for Delay costs, this time for some $15 million. That led to yet another adjudication determination, this time for zero.

All of these claims were based on the same alleged 118 days delay, the same contractual provision, the same set of contractual notices, and the same unsuccessful dispute resolution meeting back in March 2023. And so in Continue reading →