05 October 2026
3 min read
#Construction, Infrastructure & Projects
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Welcome to our September 2026 monthly roundup of decisions regarding the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act). A month low in decision volume but high on interest.
Key decisions
Following three adjudication determinations under the SOP Act, Qube paid Martinus almost $80 million for work associated with the Moorebank Intermodal Terminal Project. The parties then commenced arbitration to determine their final contractual rights. The arbitrator determined separate questions concerning contractual time bars and issued partial awards requiring Martinus to repay approximately $26.4 million.
Qube applied to enforce the partial awards as judgments under section 35 of the Commercial Arbitration Act 2010 (NSW) (Arbitration Act). Martinus opposed enforcement on the basis that repayment before the completion of the arbitration would be contrary to public policy because it would undermine the SOP Act’s “pay now, argue later” regime.
The Supreme Court rejected that argument and enforced the awards. Peden J held that the public policy exception in section 36(1)(b)(ii) of the Arbitration Act is confined to circumstances where enforcement would be contrary to fundamental principles of morality and justice. The policy underlying the SOP Act was found not to be such a principle. In any event, enforcement was not inconsistent with the SOP Act because the adjudication determinations had performed their interim function, pending the determination of the parties’ final contractual rights.
Following the Supreme Court’s orders permitting the enforcement of the arbitral awards as a judgment, Martinus sought a stay, which was refused by the primary judge.
A stay was sought, pending the leave to appeal the primary judge’s refusal of Martinus’ stay application.
The Court of Appeal considered whether Martinus had an arguable case on appeal, any prejudice it would suffer if enforcement were not stayed and the objects of the Arbitration Act. The Court also considered whether any stay should be conditional upon the judgment debt being paid into Court.
With the factors finely balanced, the Court adopted a practical solution in the interests of both parties by granting a stay on terms that Martinus pay the judgment debt into Court. The order preserved the subject matter of the dispute pending the proposed appeal while protecting Qube’s position as the judgment creditor.
For 20 years, our national Construction and Infrastructure team has been a leading adviser in security of payment disputes, acting for some of the largest security of payment disputes across the country. Security of payment legislation (in its various and evolving forms Australia wide) has transformed the way in which disputes in relation to time and money are initially dealt with in the construction industry. Success in this forum requires experts who know the ‘ins and outs’ and the ‘tips, tricks and traps’ which exist in the legislation. If you have any questions regarding this article or SOP, please contact us here.
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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