Although the year isn’t quite over yet 2025 has delivered a number of judgments from the NSW courts that provide useful lessons that construction industry participants would do well to learn from. These cases provide practical guidance on how courts interpret Building and Construction Industry Security of Payment (SOPA) deadlines, evaluate documentation, and enforce contractual terms.
This article summarises the key facts, outcomes, and lessons learned from five significant cases of 2025.
1. Roberts Co v Sharvain Facades
Background: Sharvain Facades emailed Roberts Co a payment claim at 7.17 pm on Friday 28 February 2025. The subcontract contained a deeming clause stating that notices sent after 5 pm are treated as received at 9 am on the next business day. Roberts Co served its payment schedule on 17 March, outside of ten business days from the actual email date but within ten business days of the “deemed” date.
Under s 14(4) of SOPA a respondent who does not provide a payment schedule within ten business days after service is liable for the claimed amount, and contracting out of the Act is prohibited.
Outcome: The Court found that the payment claim had been served on 28 February 2025 and by allowing the deeming clause to operate, the subcontract sought to extend the time for giving a payment schedule (recalling that you may only shorten the timeframe under SOPA). The failure to respond in time left Roberts liable for the claim of about $3.2 million. The Court was careful here not to make a ruling on whether deeming clauses are valid (unhelpfully determining that was a question for another day).
Lesson learned: When there are multiple interpretations for when a payment schedule (or other important document) is due, use the earliest possible date. Relying on deeming clauses, especially to allow yourself more time to respond to something, is a risk not worth taking.
2. Manariti Plumbing v Universal Property Group
Background: Manariti Plumbing sent Universal a payment claim on 31 March 2024 for $221,901. The claim attached an invoice, subcontractor’s statement and spreadsheet, and identified itself as made under SOPA. The attached spreadsheet itemised labour, on‑costs, materials and previous payments. Unlike all previous claims which had been made on a fixed price basis, this claim was calculated on a cost plus basis. Universal neither paid nor served a payment schedule and later contended that the claim failed to identify the construction work the subject of the claim.
Sections 8 and 15 of SOPA entitle a contractor to recover progress payments as a debt, while section 15(4) bars respondents from raising defences once proceedings commence.
Outcome: The Court of Appeal found that the attachments and the parties’ prior dealings meant the claim sufficiently identified the work. Any challenge to how the claim was structured or priced should have been made in a payment schedule or adjudication response. Because Universal failed to serve a schedule, summary judgment for the claimed amount was granted.
Lesson learned: Always issue a payment schedule, even if you believe a claim is defective.
3. Builtcom Constructions v VSD Investments
Background: Builtcom submitted a final payment claim of about $30.6 million and sought adjudication. The adjudicator awarded roughly $8.5 million, valuing some claims at nil because supporting documents later incorporated in the adjudication application were not part of the payment claim. Builtcom sought to have the adjudicator’s decision declared void, arguing that the adjudicator wrongly rejected submissions made during the adjudication. The court considered whether the adjudicator’s decision was reviewable, whether any error was a jurisdictional error and what relief should be granted.
Outcome: The Court of Appeal held that an adjudicator’s view on whether submissions are “duly made” can be reviewed but not every error is jurisdictional. The Court found that although the adjudicator’s decision was legally incorrect, and Builtcom’s claims were “duly made” despite including new information in the adjudication decision, that legally incorrect decision could not be overturned by the Courts.
Lesson learned: Adjudication decisions are very hard to undo and should be viewed as a “one shot” opportunity. Preparing for an adjudication ahead of time – including to the extent of including more material than you ordinarily would in a payment claim – can save headaches later.
4. Calibre Construction v Kaloriziko
Background: Throughout performance of the project, Calibre had claimed and been paid certain amounts for a variety of variations. At the end of the project Calibre claimed an additional $270,000 for nine variations that had previously had amounts paid by the principal. Having changed its mind from earlier assessments, the principal sought to deny the additional payment and recover previous payments, arguing that progress certificates and payments were “on account” and provisional. The contract required the developer’s representative to price each variation and provided that interim payments did not certify satisfactory work.
Outcome: the Court rejected the principal’s argument, holding that the provision in a contract that states that payments are on account does not extend to a right to re-determine whether a variation is a “variation”. If principals want the right to revisit a contractor’s entitlement to variations, the contract must say so explicitly.
Lesson learned: When pricing variations, ensure you have satisfied yourself completely that there is a variation to value – making payment of a variation may “accept the premise” and make it hard to unwind the existence of the variation to begin with.
5. Rewais v BPB Earthmoving
Background: BPB Earthmoving performed earthworks for Ms Claire and Dr Osama Rewais. There was no formal written contract and the parties communicated primarily by phone and by email sparingly. On 24 April, BPB emailed a payment claim to the Rewaises. On 22 May, BPB followed up with a s 17(2) notice of intention to adjudicate. Both documents were sent using an email address for Mr Osama Rewais that had been used previously for invoices, but which had not been agreed as an email address to use for service of notices. The documents only came to the attention of the Rewaises on 11 June. BPB subsequently applied for, and was successful at, adjudication arguing that service of the payment claim was effective when it was email. The Rewaises argued that the payment claim was not served until 11 June and any adjudication was therefore premature.
Outcome: The Court of Appeal agreed with the adjudicator that in circumstances where the email address had previously been used by the parties for the purposes of invoices, service was effective when it was sent to that address. Accordingly the adjudication determination was valid.
Lesson learned: Agree on service methods up front and stick to them. Monitor all places and methods where you might get served a document so you don’t miss any important deadlines.
Reading between the lines
Beyond the obvious “lessons” we’ve extracted above, good project administration pays dividends. Most of the disputes arose from simple administrative oversights rather than genuine disagreements. Training staff on SOPA obligations, tracking deadlines and monitoring shared inboxes will prevent missed notices.
Keeping thorough records of variations and correspondence makes payment claims easier to justify. Finally, adjudication is intended to be quick and final. Courts will not entertain new evidence or arguments in enforcement proceedings, so make your adjudication application comprehensive on the first go. By adopting these measures, construction companies can avoid costly disputes and protect their cash flow.
These case studies also demonstrate how digital communication is now an integral part of contract administration. Email and e‑platforms like PayApps will often start the statutory clock. Companies should therefore ensure that contractual notice provisions align with their IT systems and that everyone involved understands which inboxes or platforms must be monitored. A little administrative diligence at the front end can save a lot of litigation at the back end. In a rapidly digitising industry, these issues will only become more pronounced for those managing projects in NSW.
