30 October 2026
4 min read
#Construction, Infrastructure & Projects
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Welcome to our October 2026 roundup of decisions concerning the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act).
This month’s decisions put final claims, repayment risks and statutory demands in the spotlight.
Reosteel Pty Ltd v Reem Built Pty Ltd [2026] NSWSC 1348
In Reosteel Pty Ltd v Reem Built Pty Ltd [2026] NSWSC 1348, the Court considered whether a claimant could unilaterally replace a post-termination payment claim under the SOP Act.
Reem Built Pty Ltd (Reem Built) refurbished commercial premises in Casula for Reosteel Pty Ltd (Reosteel). After agreeing to perform no further work, Reem Built issued a payment claim for $45,290.15, then served a 'final payment claim' for $132,850.34, withdrawing earlier discounts and concessions. Despite Reosteel scheduling nil, the adjudicator awarded the claimed amount, interest and adjudication fees. Reosteel sought to quash the determination.
Justice Pike held that section 13(1C) permits only one post-termination payment claim, which cannot be unilaterally withdrawn and replaced. Authorities concerning agreed withdrawal did not establish otherwise; whether agreement permits replacement remained undecided. Withdrawing discounts or concessions was also distinct from withdrawing the claim itself.
The Court quashed the determination but rejected Reosteel’s separate licensing argument: the evidence did not establish a single contract covering both the commercial works and separate residential works.
Tallai Project Group Pty Ltd v Ellair Solutions Pty Ltd [2026] NSWSC 1332
In Tallai Project Group Pty Ltd v Ellair Solutions Pty Ltd [2026] NSWSC 1332, the Court determined the parties’ final contractual entitlements arising from construction works performed by Ellair Solutions Pty Ltd (Ellair) for Tallai Project Group Pty Ltd (Tallai). The proceedings concerned the recovery of payments previously received under the SOP Act.
The Court assessed Ellair’s entitlement for work and variations, less liquidated damages, at $1,039,611.50.
However, Tallai had already paid Ellair $2,628,633.95. The Court therefore entered judgment in favour of Tallai for $1,589,022.45, together with costs.
The decision illustrates that payments received under the SOP Act are interim only and adjudicator’s determinations do not finally determine the parties’ contractual entitlements. Once those entitlements were determined, the accounting between the parties resulted in a substantial repayment being due to Tallai.
In the matter of Binah Constructions Pty Ltd [2026] NSWSC 1214
In In the matter of Binah Constructions Pty Ltd [2026] NSWSC 1214, Sunnice Pty Ltd (Sunnice) sought to set aside a statutory demand served by Binah Constructions Pty Ltd (Binah) for $3,561,185.79. The amount demanded reflected an adjudication certificate issued under the SOP Act, which Binah subsequently filed as a judgment debt under section 25(1) of the SOP Act. Sunnice did not contend that there was a genuine dispute about that debt. Instead, it relied on offsetting claims for liquidated damages and restitution, that exceeded the amount demanded. The restitution claims concerned earlier payments, rather than the unpaid adjudicated amount underlying the statutory demand.
Binah contended that Sunnice could not rely on those claims because doing so would amount to an impermissible challenge to the adjudicator’s determination, an essential plank of which was that a deed of variation was enforceable (whereas Binah argued that the offsetting claims relied on by Sunnice depended on the deed of variation being unenforceable). The Court rejected that argument, distinguishing In the matter of Douglas Aerospace Pty Ltd [2015] NSWSC 167. Sunnice was not disputing the existence of the judgment debt, but advancing separate claims for damages and restitution capable of constituting offsetting claims under s 459H of the Corporations Act 2001 (Cth).
The Court also confirmed that an adjudication determination does not give rise to an issue estoppel binding the parties in subsequent civil proceedings. Sunnice would not be prevented from advancing genuine contractual and restitutionary claims even if they were different to an express determination by the adjudicator.
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