Dualcorp Pty Ltd v Remo Constructions Pty Ltd

Dualcorp Pty Ltd (the applicant) sought to appeal a decision of the Supreme Court of New South Wales concerning a progress claim made by Remo Constructions Pty Ltd (the respondent) under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The dispute arose after the respondent made a progress claim, a significant portion of which had been the subject of a previous, unsuccessful claim that had been determined by an adjudicator. The applicant argued that the subsequent claim was precluded either by the Act itself or by the principles of issue estoppel.

The central legal issue before the Court of Appeal was whether the respondent was estopped from making a further progress claim for amounts that had been considered and found not maintainable in a prior adjudication under the *Building and Construction Industry Security of Payment Act 1999*. This involved determining the scope and effect of an adjudicator's determination and whether it created a binding precedent for subsequent claims between the same parties concerning the same subject matter.

The Court of Appeal, in dismissing the appeal, reasoned that the *Building and Construction Industry Security of Payment Act 1999* did not create a statutory bar to a subsequent claim that included amounts previously adjudicated upon. Furthermore, the Court held that the doctrine of issue estoppel did not apply in this context. The Court found that the prior adjudication did not definitively determine the ultimate contractual rights and obligations of the parties, but rather determined the maintainability of that specific progress claim. Consequently, the respondent was not prevented from making a further claim that included those amounts, provided it was otherwise validly made under the Act. The Court granted leave to appeal but ultimately dismissed the appeal, ordering the applicant to pay the respondent's costs.