Kwik Flo Pty Ltd v SE Ware Street Dev Pty Ltd [2026] NSWCA 9
In February 2026 the New South Wales Court of Appeal, applying the Building and Construction Industry Security of Payment Act 1999 (NSW), held that an adjudicator's decision that he lacked jurisdiction, made after the period for an adjudication response had ended and after he had considered both parties' material, was a "determination" for the purposes of the Act. It also found no error in the primary judge's conclusion that the claimant's fresh application to a second adjudicator was an abuse of process, and dismissed the claimant's appeal with costs.
What the court decided
Kwik Flo Pty Ltd and SE Ware Street Dev Pty Ltd reached an oral agreement about developing SE Ware's land, but they disagreed about its terms [29].
On 15 May 2025 Kwik Flo lodged an adjudication application on a payment claim for $3 million plus GST, which covered building works and alleged lost profit [32]. SE Ware's adjudication response contended that the agreement fell within the exception in section 7(2)(c), so that the Act did not apply [33]. The first adjudicator issued his decision on 11 June 2025 [34]. He accepted SE Ware's version of the agreement and held that it came within section 7(2)(c), because the consideration was not to be calculated by reference to the value of the work [35]. He concluded that he had no jurisdiction to determine the application [37].
On 20 June 2025 Kwik Flo purported to withdraw its application and made a new one to a different nominating authority, saying that no determination had been made within the time allowed and that section 26(2) entitled it to apply again [38]. It filed further statutory declarations, including one from an accountant, Mr Karam, who had given no direct evidence in the first adjudication [36], [39]. SE Ware did not seek to stop the second adjudication but took an active part, contending in its adjudication response that the first determination was binding [40], [52]. It denied that Mr Karam's evidence improved Kwik Flo's position but said that, even if it did, relying on it would be an abuse of process and create an issue estoppel [40]. On 14 July 2025 the second adjudicator determined $1,200,000 in Kwik Flo's favour, having reached different findings from the first on both jurisdiction and the terms of the agreement [41].
SE Ware then applied to the Supreme Court for certiorari to quash the second determination and for a permanent injunction against its registration or enforcement [42]. Peden J held that the first decision was a determination for the purposes of the Act which had not been found invalid, and that the second application was an abuse of process [44]. Peden J concluded that the appropriate relief was an injunction restraining Kwik Flo from taking steps to register or enforce the second determination [54].
On appeal, Griffiths AJA gave the leading reasons; Mitchelmore JA and Price AJA each agreed in a single sentence [1], [110].
On the first ground, Griffiths AJA was not persuaded that the construction applied by Peden J was incorrect [62]. In the court's view, Kwik Flo's narrower reading sat uncomfortably with the policy of the Act against repetitive re-agitation of the same issues, as described in Dualcorp Pty Ltd v Remo Constructions Pty Ltd [64], [65], [67]. That reading would encourage a claimant unhappy with a ruling on jurisdiction to withdraw its application and try another adjudicator, as Kwik Flo had done, even where the ruling was free of jurisdictional error [67]. The broader construction did not shut out a dissatisfied claimant: a ruling affected by jurisdictional error could be challenged by timely judicial review, and if the ruling was in fact so affected the claimant could take the steps in section 26 without first going to court [68]. That course might prompt the respondent to seek to restrain the second adjudication as an abuse of process if in truth it was not vitiated [68].
Griffiths AJA then relied on the structure of the Act, in which a determination is the culmination of earlier statutory steps [69], [71]. The prohibitions in section 21(1) and (2), which bar an adjudicator from determining an application before the response period has ended and from considering a late response, were described as fundamental requirements [71]. The first adjudicator had observed those steps, as he did not decide until the response period had ended [74]. SE Ware lodged a response and both parties put on evidence and submissions on the merits and on jurisdiction, which he considered before concluding that he lacked jurisdiction [74].
That the adjudicator had framed his decision as a formal determination did not of itself make it one in law; what was significant was that it was made consistently with the statutory structure [75]. Griffiths AJA attached no particular significance to the absence of jurisdiction from the matters listed in section 22(1), because a non-court statutory body such as an adjudicator has incidental power to form a view on its own jurisdiction, a principle drawn from the High Court's observations in Citta Hobart Pty Ltd v Cawthorn [76].
Kwik Flo relied heavily on Olympia Group (NSW) Pty Ltd v Hansen Yuncken Pty Ltd [77]. In that case Ball J held that an adjudicator's ruling that the Act did not apply was not a determination of the type contemplated by section 22 [81]. Griffiths AJA distinguished that case because the ruling there was made before the period for an adjudication response had expired, and so not in conformity with the statutory steps [86]. Under section 21(1), an adjudicator is directed not to determine an application until that period has ended [87]. The Full Court of the Federal Court had distinguished Olympia Group on the same basis in Forte Sydney Carlingford Development Pty Ltd v Forte Sydney Carlingford Pty Ltd, and Griffiths AJA broadly agreed with its reasoning [88], [91]. He preferred, however, to describe the decision in that case as a determination for the purposes of the Act generally rather than under section 22 specifically [91].
Nor was the analysis inconsistent with Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd, because the reasoning there rested on the premise that the first determination was void, and neither party here asserted that the first adjudicator's decision was void [93], [97], [98].
On the second ground, the court accepted that the reasoning of Stewart J in Forte Sydney Carlingford Development Pty Ltd v Li, later upheld by the Full Court, supported Peden J's approach [100], [102]. The court rejected Kwik Flo's contention that the two processes did not re-agitate the same issues, because jurisdiction was at the forefront of both applications [103]. That Kwik Flo led further evidence on jurisdiction the second time did not alter that conclusion, since the policy of the Act was not to be circumvented by a new application on the same payment claim relying on evidence available the first time [103].
That the second adjudicator went on to decide the substantive issues after finding jurisdiction did not stand in the way of a finding of re-agitation [105]. The fact that both parties had engaged actively and voluntarily in the second adjudication did not show error, because SE Ware had made clear throughout that it regarded that process as an abuse [106]. The court held that no error had been shown in Peden J's reasoning or conclusion on abuse of process [108]. Griffiths AJA noted, without needing to decide the point, that Peden J's obiter view that relief would follow even if the first decision were void was difficult to reconcile with Parrwood [108]. The appeal was dismissed with costs [109], [110].
Why it matters
The court treated an adjudicator's decision that he lacked jurisdiction as a determination for the purposes of the Act where it came at the end of the statutory process, after the response period and with both sides' material considered. On those facts, the claimant could not treat the decision as a failure to determine and start again before another adjudicator. The court distinguished Olympia Group, where the ruling came before the response period had ended, principally on that timing.
On the second ground, the court found no error in treating as an abuse of process a fresh application on the same payment claim that re-agitated jurisdiction with evidence that could have been led the first time, even though the respondent took part in the second adjudication without first seeking to stop it, having made clear throughout that it regarded that process as an abuse. The court did not decide whether the first adjudicator was right about the section 7(2)(c) exception; neither party said his decision was void. The decision concerns the New South Wales Act, and Victorian readers should check the Victorian Act and later authority before relying on it.
Numbers in square brackets are paragraph numbers of the judgment. This note summarises a decided case for education and is not legal advice. See how the notes are written.