Builtcom Construction Pty Ltd v VSD Investments Pty Ltd atf the VSD Investments Trust (No 2); VSD Investments Pty Ltd atf the VSD Investments Trust v Builtcom Construction Pty Ltd (No 2)

[2025] NSWSC 403

Supreme Court

New South Wales

Medium Neutral Citation:

Builtcom Construction Pty Ltd v VSD Investments Pty Ltd atf The VSD Investments Trust (No 2); VSD Investments Pty Ltd atf The VSD Investments Trust v Builtcom Construction Pty Ltd (No 2) [2025] NSWSC 403

Hearing dates:

On the papers

Date of orders:

29 April 2025

Decision date:

29 April 2025

Jurisdiction:

Equity - Technology and Construction List

Before:

Peden J

Decision:

At [13]

Catchwords:

BUILDING AND CONSTRUCTION — adjudication — judicial review — money paid into Court as price for interlocutory injunction — whether funds in Court should be paid to party with benefit of determination following judgment — relevance of appeal by party with benefit of determination

Legislation Cited:

Building and Construction Industry Security of Payment Act 1999 (NSW)

Cases Cited:

A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144

Builtcom Construction Pty Ltd v VSD Investments Pty Ltd atf The VSD Investments Trust [2025] NSWSC 250

Cobar Shire Council v Castlereagh Construction Group Pty Ltd [2017] NSWSC 86

Filadelfia Projects v EntirlTy Business Services [2010] NSWSC 473

Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd [2025] NSWCA 49

Nazero Group Pty Limited v Top Quality Construction Pty Limited [2015] NSWSC 232

Texts Cited:

Nil

Category:

Consequential orders

Parties:

Builtcom Constructions Pty Ltd (plaintiff in 2025/00046823; first defendant in 2025/00048213)
VSD Investments Pty Ltd atf The VSD Investments Trust (first defendant in 2025/00046823; plaintiff in 2025/00048213)
Chris Thompson (second defendant in 2025/00046823 and 2025/00048213)

Representation:

Counsel:
D Hume (Builtcom Constructions)
G A Sirtes SC (VSD Investments)

Solicitors:
Fortis Law (Builtcom Constructions)
HWL Ebsworth (VSD Investments)

File Number(s):

2025/00046823
2025/00048213

Publication restriction:

Nil

JUDGMENT

1. On 11 April 2025, I delivered judgment in this matter, dismissing claims by both Builtcom and VSD concerning aspects of an adjudication determination: Builtcom Construction Pty Ltd v VSD Investments Pty Ltd atf The VSD Investments Trust [2025] NSWSC 250 (Judgment).

2. The effect is that the determination has not been set aside. It required VSD to pay Builtcom the sum of $8,467,232.13.

3. On 7 February 2025, Stevenson J ordered VSD to pay $8,703,875.26 into Court. That sum comprises the adjudicated amount ($8,467,232.13), 50% of the adjudicator’s fees ($48,420.90), and interest from 13 December 2024 to 28 February 2025 at 10.35% ($188,222.23).

4. Builtcom seeks that those funds in Court be paid to it.

5. VSD does not object to the release of that portion of the money referable to the adjudicator’s fees (provided an undertaking is given that the money will be paid directly to the adjudicator), but objects to the balance being released.

6. The usual practice in this Court is that, where a respondent to an adjudication determination seeks to set aside the determination for jurisdictional error, enforcement of the determination will generally be stayed provided the respondent pays the adjudicated amount (plus fees and top-up interest) into Court. Those funds abide the outcome of the judicial review challenge, in that they are returned to the respondent if the challenge succeeds. Otherwise, they are paid out to the party with the benefit of the determination under the Building and Construction Industry Security of Payment Act 1999 (NSW): see Filadelfia Projects v EntirlTy Business Services [2010] NSWSC 473 at [11] (McDougall J); Cobar Shire Council v Castlereagh Construction Group Pty Ltd [2017] NSWSC 86 at [14]-[17] (Stevenson J). That approach accords with the policy of the Act, as reflected in s 25(4)(b), that a claimant is to be given protection of payment into Court when a respondent seeks to inhibit the claimant’s enforcement of an adjudication in its favour: Nazero Group Pty Limited v Top Quality Construction Pty Limited [2015] NSWSC 232 at [42] (Hammerschlag J, as his Honour then was). That approach has been followed thus far in this case.

7. VSD’s challenge to the determination having failed, the usual course would be for the funds in Court to abide that event and to be paid to Builtcom.

8. However, VSD submits that Builtcom should not receive the funds because Builtcom is challenging the determination in an appeal it has filed, and the broad nature of the relief sought in Builtcom’s notice of appeal leaves open the possibility that the Court of Appeal may quash the entirety of the determination, “meaning that nothing would continue to be payable by VSD to Builtcom”.

9. I do not accept that submission.

10. Builtcom’s challenge to the determination relates to the adjudicator’s rejection of items claimed by Builtcom in addition to the adjudicated amount. Success in Builtcom’s appeal may have the consequence of increasing, but not decreasing, the adjudicated amount. In circumstances where VSD’s challenge to the determination has failed, it would be inimical to the objects of the Act if Builtcom were to be held out of payment merely because it is seeking to pursue a challenge in relation to additional items rejected by the adjudicator.

11. Although there is jurisdiction to stay payment out, VSD has made no application for a stay (nor has it filed an appeal). VSD’s submissions merely suggest that there is “no available evidence to suggest [Builtcom] can repay” the adjudicated amount if Builtcom’s appeal succeeds and the determination is quashed. As I have explained, repayment of the adjudicated amount to VSD is by no means a necessary consequence of Builtcom succeeding in its appeal. And, in any event, there is a heavy evidentiary burden on a party seeking a stay. VSD has not attempted to discharge that burden here: see Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd [2025] NSWCA 49 at [290]-[304] (Payne JA, Gleeson JA and Griffiths AJA agreeing); A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144 at [21]-[31] (Payne JA and Simpson and Basten AJJA).

12. It is appropriate to order that the funds in Court be paid to Builtcom, together with additional monthly interest accrued.

Orders

13. I order that:

1. the parties to confer and agree on the orders necessary to give effect to these reasons;

2. by 12 noon 2 May 2025, the parties are to send to chambers of Peden J agreed orders, or if there is no agreement, a single joint email indicating they have not agreed and seeking a listing for a directions hearing.

**********

Decision last updated: 29 April 2025