Goyder Wind Farm 1 Pty Ltd v Ge Renewable Energy Australia Pty Ltd

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Judicial Review)
GOYDER WIND FARM 1 PTY LTD v GE RENEWABLE ENERGY AUSTRALIA PTY LTD & ORS
[2024] SASC 108
Judgment of the Honourable Justice Stein
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - REMUNERATION - STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS - ADJUDICATION OF PAYMENT CLAIMS
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - TO GIVE OPERATION AND EFFECT TO ACT
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI - GROUNDS FOR CERTIORARI TO QUASH - EXCESS OR WANT OF JURISDICTION - PARTICULAR INSTANCES OF JURISDICTIONAL ERROR
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO PREVENT ABUSE OF PROCESS - ATTEMPTS TO RELITIGATE
ESTOPPEL - ESTOPPEL BY JUDGMENT - ISSUE ESTOPPEL - GENERAL PRINCIPLES
ESTOPPEL - ESTOPPEL BY JUDGMENT - ANSHUN ESTOPPEL - GENERALLY
Goyder Wind Farm 1 Pty Ltd, the applicant (“Goyder”), entered into contracts with GE Renewable Energy Australia Pty Ltd and Elecnor Australia Pty Ltd, the first and second respondents (“GE‑Elecnor”), for the construction of a windfarm.
GE-Elecnor has issued at different times three separate claims for progress payments relating to claimed entitlement to delay costs arising from a claimed an extension of time pursuant to the contract. Two of the claims have proceeded to adjudication determination pursuant to Building and Construction Industry Security of Payment Act 2009 (SA) (“the Act”). The third claim is currently enjoined from proceeding by interim orders made at the commencement of these proceedings.
Goyder applied for review of the second determination by the adjudicator and sought an order quashing that second determination in addition to orders preventing GE-Elecnor taking steps to enforce the determination and from taking steps to progress a third claim to adjudication.
Goyder submitted the adjudicator had erred in the second determination on the basis he failed to apply s 22(4) of the Act and wrongfully permitted GE-Elecnor to re-agitate the claim for delay costs.
GE-Elecnor submitted the various delay cost claims were different and there had been no impermissible re-agitation of claims as between the first and second determination and the third payment claim.
Held (dismissing the application insofar as it relates to the second adjudication determination):
1.The delay claims did not constitute a singular claim for construction work which would have been carried out in the extension of time period.
2.Section 22(4) of the Act did not apply. If it had applied, s 22(4) of the Act is not a matter of jurisdiction.
3.The prolongation and procurement premium delay cost claims did not overlap and it was not an abuse of the processes of the Act to claim those amounts in separate payment claims.

Held (allowing the application insofar as it relates to the thickening costs claim aspect of the third adjudication claim):
4.The thickening costs claim aspect of the claim is precluded by the legislation as an impermissible re-agitation by re-claiming thickening costs in respect of which the Adjudicator has already discharged the statutory function by rejecting the claim as lacking evidential foundation.

Building and Construction Industry Security of Payment Act 2009 (SA) ss 8, 13, 17, 22(4), 32; Building and Construction Industry Security of Payment Act 1999 (NSW) ss 8, 9, 13(1), 13(5), 13(6), 17, 22(1), 22(4); Building and Construction Industry Payments Act 2004 (Qld); Building and Construction Industry (Security of Payment) Act 2009 (ACT) ss 24(2), 24(4), 38, referred to.
Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229; Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385; EnerMech Pty Ltd v Acciona Infrastructure Projects Aust Pty Ltd [2024] NSWCA 162; John Goss Projects Pty Ltd v Leighton Contractors Pty Ltd (2006) 66 NSWLR 707; Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190; Civil & Allied Technical Construction Pty Ltd v Resolution Institute [2019] SASC 193; Rothnere Pty Ltd v Quasar Constructions NSW Pty Ltd [2004] NSWSC 1151; Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; Harlech Enterprises Pty Ltd (ATF Harlech Family Trust) v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635; Urban Traders Pty Ltd v Paul Michael Pty Ltd [2009] NSWSC 1072; Watpac Constructions (NSW) Pty Ltd v Austin Corp Pty Ltd [2010] NSWSC 168; Wiggins Island Coal Export Terminal Pty Ltd v Monadelphous [2016] QSC 96; Caltex Refineries (Qld) Pty Ltd v Allstate Access (Australia) Pty Ltd [2014] QSC 223; Estate Property Holdings Pty Ltd v Barclay Mowlem Construction Ltd [2004] NSWCA 393, considered.

GOYDER WIND FARM 1 PTY LTD v GE RENEWABLE ENERGY AUSTRALIA PTY LTD & ORS
[2024] SASC 108
Civil: Application

STEIN J: Goyder Wind Farm 1 Pty Ltd as trustee for the Goyder Wind Farm 1 Trust (“Goyder”) entered into contracts with the first and second respondents, GE Renewable Australia Pty Ltd and Elecnor Australia Pty Ltd (collectively “GE‑Elecnor”) for the construction of a wind farm. GE-Elecnor claimed entitlement to various extensions of time and delay costs said to arise from delays to site access caused by Goyder. GE-Elecnor relevantly issued three separate claims for progress payments at different times and made three separate applications for adjudication of such payment claims pursuant to the provisions of the Building andConstruction Industry Security of Payment Act 2009 (SA) (the “Act”). Two applications resulted in adjudication determinations. A further application for adjudication was commenced but has not yet proceeded as a consequence of orders made in this action.
In this action Goyder seeks review of the second determination of the third respondent, Mr Thyer (the “Adjudicator”), which determined that Goyder pay a progress payment in the amount of $21,029,854.77 to GE-Elecnor. Goyder seeks an order quashing that determination. Alternatively, Goyder seeks declaration that the determination is of no effect at all or, alternatively, is of no effect insofar as it purported to determine rights for delay costs in respect of GE-Elecnor’s extension of time claims.
Goyder seeks to restrain GE-Elecnor from taking any steps to enforce the determination and from taking steps to progress a third claim for a progress payment made on 1 July 2024 to adjudication determination.
Goyder sought an urgent hearing of its application for review. Interim injunction orders were made pending the hearing and determination of the application. The parties complied with an extremely tight timetable to file materials, the hearing was expedited and I have written reasons as a matter of urgency.
The Adjudicator and the fourth respondent, the Resolution Institute, did not take an active role and will abide the outcome of these proceedings.
For the reasons that follow I have determined to refuse the application insofar as it relates to the adjudication determination made on 17 July 2024 but to make orders in relation to aspects of the application for adjudication which is presently enjoined from proceeding.
Background
The contract
In 2021, Goyder and GE-Elecnor entered into engineering, procurement and construction contracts for the construction of a wind farm (the “contract”). The project was divided into Stage 1A and Stage 1B with Stage 1A relating to 38 wind turbines.
In the contract, delay costs are defined as “costs payable to GE-Elecnor for delay and disruption determined in accordance with cl 13.11”.
Clause 13.3 of the contract provides for GE-Elecnor’s entitlement to, and process for, seeking extensions of time (“EOT”). If GE-Elecnor considers it has been or is likely to be delayed, it must give written notice of the delay. If a delay event continues for a period longer than contemplated in the EOT claim, GE‑Elecnor may amend the EOT claim by submitting a revised claim.[1]
[1] Contract, cl 13.3(c).
Under cl 13.11(a) of the contract, where GE-Elecnor has been granted an extension of time under cl 13.3 for delays of the kind defined as a Delay Cost Event, Goyder must pay to GE-Elecnor delay costs being “such extra costs as are directly and necessarily incurred by [GE-Elecnor] in connection with the extension by reason of the Delay Cost Event”. Delay costs are valued in accordance with schedule 5 to the contract.
Pursuant to clause 20.1 of the contract, in each calendar month, if GE-Elecnor considers there has been a completion of a milestone event or that other amounts are payable to GE-Elecnor under the contract, GE-Elecnor is to submit to the Principal’s Representative (as defined in the contract) a claim for payment.
Clause 20 sets out the matters which must be addressed in a payment claim. It includes calculation of milestone amounts and any other amounts payable to GE-Elecnor in accordance with the contract.
GE-Elecnor may only submit one payment claim per calendar month.
The contract provides for a payment schedule to be issued to GE-Elecnor certifying, among other things, the milestone amount attributable to a certified completed milestone event and any other amounts payable to GE-Elecnor in accordance with the contract.[2] The amount to be certified in a payment schedule is able to be adjusted by, among other things, any correction to amounts previously certified in a previous payment certificate.[3]
[2] Contract, cl 20.3.
[3] Contract, cl 20.4(b).
Pursuant to the contract, any payment certificate or payment of monies under cl 20.6 is only a payment on account.[4]
[4] Contract, cl 20.8.
A failure to include in a payment certificate any amount which Goyder is entitled to retain, deduct, withhold or set off does not prejudice Goyder’s right to subsequently exercise such rights to retain, deduct, withhold or set off any amount.[5]
[5] Contract, cl 20.8(b).
Pursuant to cl 20.15, GE-Elecnor agrees and acknowledges that the dates specified in cls 20.1(a) and 23.7[6] of the contract are a ‘reference date’ as defined in the Act.
[6] Contract, cl 23.7 relates to the issue of a final payment claim.
Nothing in the contract restricts or limits GE-Elecnor’s right to refer any dispute to adjudication.[7]
[7] Contract, cl 20.15(b).
If a dispute arises between the parties, the contract provides that a notice must be issued referring the matter to senior representatives of Goyder and GE-Elecnor for negotiation.[8] In the event a dispute relating to a commercial or legal issue is not able to be resolved through negotiation, the contract stipulates that the dispute must be referred to arbitration.[9]
[8] Contract, cl 43.2.
[9] Contract, cl 43.4(a).
Schedule 1 of the contract defines “balance of plant” (“BoP”) as all aspects of the works except works relating to the wind turbines, including but not limited to their installation, commissioning and testing.
Schedule 5 of the contract sets out the principles for valuing delay costs. Those principles include that the amounts determined are to be applied in a manner that only compensates GE-Elecnor for the additional costs directly and reasonably incurred by it that relate to the period of delay for which an extension of time has been granted under cl 13.3. Overhead and profit cannot be included apart from the stipulated overhead component of 12 percent of the value of delay costs.
The valuation of delay costs is to be calculated by adding (where applicable) the labour component, plant component, services and sub-contractor work component, materials component, and allowable overhead (each defined as a component). Each component is to be calculated in accordance with the schedule. The labour component is valued in the same manner as the valuation of a labour component for a variation, which is by reference to units of labour used, or to be used, applied to labour rates set out in the schedule.
The specifications in schedule 2 to the contract set out the scope of works as detailed engineering investigation and design, procurement, manufacture, supply, delivery, storage, construction, installation, testing, commissioning and defects liability, operations, maintenance, repair, refurbishment and modification of a complete wind farm at the site.
Section 4.2 of schedule 2 sets out a range of components of work. The specifications list numerous areas and items of work comprising the defined works, including construction of sub-stations, wind farm collector system (including underground cabling), wind turbines (including support stands and platforms), access infrastructure, structural works, civil works including earthworks and trenching, enabling works and all required site investigations, installation, and commissioning of control systems.
Payment is made by reference to milestone events which relate to stages of completion of components of the work. Milestone events are defined in schedule 4. The schedule contains milestone events for the wind turbine generator price component of the contract and the BoP component. Such milestone events include mechanical completion, sectional completion, commencement of establishment works, commencement of execution of internal access roads, stages of delivery of tower foundations, structural concrete pouring, delivery of tower foundations, stages of erection of towers, termination of sub-station earthworks (embankment, access road and external drainage), delivery of main equipment, stages of delivery of medium voltage (“MV”) cables, stages of delivery of MV trenches, assembly of towers and so on.
The contract provides for phasing of permitted activities as set out in schedule 28. During each phase, GE-Elecnor is permitted to carry out permitted activities as defined in the contract. Phases 1 includes geotechnical investigations, certain earthworks and any aspects of the work to be performed on public land. Phase 2 includes all phase 1 permitted activities in addition to site establishment (construction compound set up). Phase 3 includes all elements of the works permitted under the contract.
EOT claims
GE-Elecnor made EOT claims, EOT 001 and EOT 002, by letters dated 19 July 2022 and 8 August 2022 and claimed costs arising from the alleged delays.
First payment claim
On 29 February 2024, GE-Elecnor served on Goyder a payment claim in the amount of approximately $19.1 million (the “First Payment Claim”).
The First Payment Claim was a claim pursuant to cl 13.11(a) of the contract for delay costs alleged to be directly and necessarily incurred by reason of an alleged delay cost event the subject of GE-Elecnor’s EOT 001 and EOT 002 claims. The reference date under the Act for the First Payment Claim was 29 February 2024.
The First Payment Claim sought payment of approximately $3.8 million in respect of milestone events and $15.3 million for prolongation costs and costs for thickening of indirect resources pursuant to cl 13.11 of the contract or, alternatively, as an adjustment to contract price under cl 12.4.
First adjudication application and first adjudication determination
After receiving Goyder’s payment schedule, on 8 April 2024, GE-Elecnor submitted an adjudication application in respect of the First Payment Claim (“First Adjudication Application”).
In the First Adjudication Application, GE-Elecnor claimed “partial payment of the total delay costs incurred by reason of extension of time claims”. Those costs were split into:
prolongation costs; and
thickening costs.
GE-Elecnor maintained Goyder’s delays caused GE-Elecnor to change its strategy for procurement and delivery of foundations and earthworks and MV trenching and electrical works packages. GE-Elecnor’s position was that it was required to supplement its resources to deliver the works by entering into additional sub-contracts as well as using self-delivery crews.
After receiving documents and submissions from the parties, the Adjudicator on 2 May 2024 made an adjudication determination (“First Adjudication Determination”).
In the First Adjudication Determination, the Adjudicator determined, among other things that:
1.the alleged delays the subject of GE-Elecnor’s EOT 001 and EOT 002 claims were delay events as defined under the contract;
2.the (combined) delay the subject of GE-Elecnor’s EOT 001 and EOT 002 was 118 days and, pursuant to cl 13.3(f) of the contract, GE-Elecnor was entitled to an extension of time of 118 days to the date for practical completion;
3.GE-Elecnor was entitled pursuant to cl 13.11(a) of the contract for extra costs as were directly and necessarily incurred by reason of the delay event.
The Adjudicator did not agree with Goyder’s submission that GE-Elecnor was not entitled to an EOT by reason of concurrent delay or failure to mitigate.[10] The Adjudicator was satisfied the delays were on the critical path, no reasonable reprograming or alteration of sequences of activities could avoid the delay without incurring additional costs and GE-Elecnor took all reasonable steps that could be taken without incurring additional costs to mitigate the delays.
[10] First Adjudication Determination at [252]-[261].
In respect of the claim for prolongation costs, the Adjudicator referred to cl 13.11(a) of the contract which provided that where GE-Elecnor had been granted an extension of time for a Goyder caused delay, Goyder must pay such extra costs as are directly and necessarily incurred by GE-Elecnor in connection with the extension by reason of the delay cost event. The Adjudicator accepted GE-Elecnor’s entitlement to prolongation and allowed an amount for prolongation costs.
In relation to thickening of indirect resources, GE-Elecnor submitted the costs incurred for thickening were substantiated by GE-Elecnor having identified the additional personnel mobilised as a consequence of the delays on the basis of payroll records, supplemented by third party invoices.
The Adjudicator considered the burden of proof was on GE-Elecnor to establish entitlement to its thickening of indirect resources claim. A project manager for Elecnor, Mr Joven, assessed the thickening of indirect resources based on additional resources he identified by comparing the tender manning schedule against actual personnel Mr Joven asserted were required as a result of the change in procurement strategy due to the EOT delays.[11] The Adjudicator pointed out that the correctness of Mr Joven’s assessment and valuations were reliant on GE‑Elecnor’s tender manning schedule being reasonable and achievable and that each of the additional resources claimed were required due to the delays the subject of EOT 001 and EOT 002.[12]
[11] First Adjudication Determination at [319].
[12] First Adjudication Determination at [327].
The Adjudicator considered it was not enough to evidence a cost being incurred. Rather, GE-Elecnor had to demonstrate how delay caused the incurrence of those costs; that GE-Elecnor did not establish any basis to “join the dots” between the costs and the delay and, absent any evidence of any linkage between alleged delay and thickening costs, there was no proper basis for the claim. The fact of a cost did not mean an entitlement to recovery.[13]
[13] First Adjudication Determination at [330].

Based on the information provided, the Adjudicator was not satisfied that GE-Elecnor’s tender manning schedule was reasonable and achievable and the resources claimed by GE-Elecnor in the thickening of indirect resources claim were additional resources required due to delays the subject of EOT 001 and EOT 002.[14]
[14] First Adjudication Determination at [332].
In the circumstances, the Adjudicator did not consider GE-Elecnor had discharged its burden of proof to establish entitlement to its thickening of indirect resources claim either pursuant to cl 13.11 of the contract or as a variation pursuant to cl 12.4 of the contract. The Adjudicator therefore determined that GE-Elecnor was not entitled to any amount in respect of the thickening of indirect resources claim and allowed $0 for the claim in calculating the adjudicated amount.[15]
[15] First Adjudication Determination at [334].
Second payment claim
On 30 April 2024, GE-Elecnor served a payment claim in the amount of $28.5 million pursuant to the contract (Second Payment Claim).
In the Second Payment Claim, GE-Elecnor claimed payment of $2.3 million for milestone events and $26.1 million for procurement premiums for civil BoP said to be additional direct costs of procuring civil BoP works due to a change in procurement strategy resulting from delays caused by Goyder. The costs claimed in the Second Payment Claim arose out of EOT 001 and EOT 002. On GE‑Elecnor’s case, the costs claimed were separate and distinct.
Second adjudication application and second adjudication determination
After receiving Goyder’s payment schedule, GE-Elecnor submitted an adjudication application (“Second Adjudication Application”). Goyder provided an adjudication response. The Adjudicator received voluminous documents and submissions.
On 17 July 2024, the Adjudicator delivered an adjudication determination upon the Second Payment Claim (“Second Adjudication Determination”).
In the Second Adjudication Determination, the Adjudicator determined the amount of the progress payment to be paid by Goyder as $21,029,854.77.
The progress payment of $21,029,854.77 provided for in the Second Adjudication Determination was calculated as follows:
an amount for milestone events: $1,419,518.68;
delay claims as follows:
-procurement premiums for civil BoP: $21,098,688.44;
-12 percent for overheads: $2,531,842.62;
less delay liquidated damages: $5,932,000,00;
GST (10 percent): $1,911,804.98.
Based on his review of the claim for delay costs in the First and Second Payment Claims, the Adjudicator was satisfied that the construction work and goods and services the subject of the claim for delay costs as determined in the First Adjudication Determination were separate and did not overlap with the construction work and goods and services the subject of the claim for delay costs in the Second Adjudication Application.[16]
[16] Second Adjudication Determination at [255].
The Adjudicator considered he had not in the First Adjudication Determination determined the value of the construction work and goods and services the subject of the claim for delay costs made in the Second Adjudication Determination. Accordingly, s 22(4) did not apply. In the event he was wrong about that, the Adjudicator considered any assessment as to change in value should be made by assessing whether or not there had been any change in the value since the reference date of the First Payment Claim (as opposed to the date of the First Adjudication Determination). In such case, the Adjudicator was satisfied the value of the work had changed since the date of the First Payment Claim. The exception in s 22(4) of the Act applied in that scenario and therefore the Adjudicator was not bound by the value determined in the First Adjudication Determination.
The Adjudicator was satisfied that the changes in procurement strategy made by GE-Elecnor were made as a result of the delays the subject of the claims for EOT 001 and EOT 002 and the changes were reasonable and appropriate in the circumstances. The Adjudicator was satisfied the delay costs claimed were reasonable and necessarily incurred in connection with the delays the subject of EOT 001 and EOT 002.[17]
[17] Second Adjudication Determination at [282].
Third payment claim
On 2 July 2024, GE-Elecnor served a payment claim claiming $25.3 million (“the Third Payment Claim”). The amount of the Third Payment Claim comprised $4.6 million in respect of milestone events and $20.7 million in respect of thickening costs and procurement premiums for the MV trenching work pursuant to cl 13.11 or, alternatively, as an adjustment to contract price under cl 12.4 of the contract.
GE-Elecnor thereafter submitted an adjudication application which, as set out above, has not proceeded as a result of orders made.
Nature of delay costs claimed
The delay costs claimed in the three payment claims were termed prolongation costs, thickening costs and procurement premiums.
Prolongation costs were said to be indirect time related costs of labour, plant and services, and site running costs resulting from delays.
Thickening costs were said to be the indirect costs of additional personnel and light vehicles required as a result of the delays.
Procurement premiums were said to constitute a claim for direct costs paid in the form of premiums by GE-Elecnor in relation to BoP works incurred due to delays. The procurement premiums claims were divided into two parts. The first was for civil BoP Foundations and Earthworks works and the second for electrical MV Trenching and Electrical reticulation works.
On GE-Elecnor’s case, procurement premiums are separate and distinct direct, additional costs incurred in engaging sub-contractors, third-party labour and plant hire providers as opposed to indirect resources comprised in thickening claims.
Comparison between amounts claimed in the first, second and third payment claims
The First Payment Claim included approximately $10.6 million in respect of additional (thickened) personnel costs for GE-Elecnor’s own personnel, primarily relating to supervision and management of works.
The Third Payment Claim included approximately $14.3 million in respect of additional (thickened) personnel costs for GE-Elecnor’s own personnel, primarily relating to supervision and management of the works.
Mr Joven deposed by affidavit dated 30 July 2024[18] to the circumstances in which the claim for thickening costs in the Third Payment Claim was made.
[18] Affidavit of Jose Antonio Joven made on 30 July 2024 (FDN 26).
Mr Joven deposed to the value of the thickened costs changing from the value claimed in the First Payment Claim. He said GE-Elecnor also included the cost of light vehicles used by thickened personnel in its thickening claim in the Third Payment Claim.
Mr Joven said that following the submission of the First Payment Claim and the First Adjudication Application, some end dates for thickened resources became known and forecast hours per month on the Stage 1A project became known. While not all thickened resource end dates became known, because their work was ongoing, some of the forecasts changed. Eight new staff were captured in staff records after September 2023 resulting in an increase of approximately $2.8 million and staff hours of 13 existing staff were adjusted resulting in a decrease of approximately $1.9 million.
Mr Joven prepared a comparison of claims included in each of the First Payment Claim and First Adjudication Determination, Second Payment Claim and Second Adjudication Determination and the Third Payment Claim. The key parts are set out as follows:

February 2024
Payment Claim April 2024
Payment Claim July 2024
Payment Claim

Prolongation Costs

EOT 001

Indirect Costs – Staff $ 3,104,312.91 Not Claimed Not Claimed

Indirect Costs – Site running costs $     219,410.51 Not Claimed Not Claimed

Overheads (12%) $     398,846.81 Not Claimed Not Claimed

EOT 002

Indirect Costs – Staff $     740,105.10 Not Claimed Not Claimed

Indirect Costs – Site running costs $    64,937.13 Not Claimed Not Claimed

Overheads (12%) $    96,605.07 Not Claimed Not Claimed

Subtotal Prolongation $ 4,624,217.53 $               - $               -

Thickening

Additional Staff $ 9,517,947.36 Not Claimed $11,638,868.80

Additional Vehicles Not Claimed Not Claimed $ 1,414,586.30

Overheads (12%) $ 1,142,153.68 Not Claimed $ 1,533,654.61

Subtotal Thickening $10,660,101.04 $               - $14,314,109.71

Procurement Premiums

CBOP (Civils) – Foundations and Earthworks

Additional Direct Costs Not Claimed $23,336,123.96 Not Claimed

Overheads (12%) Not Claimed $ 2,800,334.87 Not Claimed

MV Trenching and Electrical Reticulation

Additional Direct Costs Not Claimed Not Claimed $ 5,729,551.57

Overheads (12%) Not Claimed Not Claimed $     687,546.19

Subtotal Procurement Premiums $               - $26,136,458.83 $ 6,417,097.76

Total Delay Costs $15,284,318.57 $26,136,458.83 $20,731,207,47

I return to address the extent of overlap between claims below.
Notice of arbitration
On about 27 December 2023, GE-Elecnor issued a notice of arbitration and referred a dispute to arbitration claiming a total of $61,451,756.11 in delay costs pursuant to cl 13.11 of the contract in respect of GE-Elecnor’s EOT 001 and EOT 002 claims. Those amounts included amounts for prolongation costs of $7,554,516.01 and procurement premiums of $38,053,873.24 including an amount of $7,591,882.22 for “thickening”.
Goyder included in its submissions a table setting out a comparison of the amounts claimed in the notice of arbitration and the amounts claimed in the payment claims as follows:

Notice of Arbitration SOPA #1 SOPA #2 Potential SOPA?

Item Description TOTAL First Payment Claim Second Payment Claim Third Payment Claim

1 Prolongation Costs

1.1 Personnel 3,865,144.29 3,844,418.01[19]

1.1.1 Cost personnel due to late start including costs of personnel due to longer duration of works (1A + 1B) 2,595,996.54

1.2 Site Running Facilities 1,093,375.18 284,347.64

2 Procurement Premiums

2.1 Foundations & Earthworks 23,484,544.30 23,336,123.96

2.2 MV Trenching 6,977,446.72 5,729,551.57

2.3 Thickening 7,591,882.22 9,517,947.36 12,780,455.10

3 Other (Additional Costs)

3.1 Purchase of Additional Steel 1,126,643.75

3.2 Double handling costs 73,370.50

3.3 Steel rectification costs 122,273.25

3.4 Storage costs 996,635.09

3.5 Cost of Money 252,650.54

3.6 Crane costs - 3 Cranes Day vs 2 Crane Day/Night 6,206,356.71

3.7 Transport 55,651.90

3.8 Warranty Extension (Defects liability period) 425,668.40

4 Overheads

4.1 12% for overheads 6,584,116.73 1,637,605.56 2,800,334.88 2,221,200.80

TOTAL 61,451,756.11 15,284,318.57 26,136,458.84 20,731,207.47
[19] This is split up into 2 components in the February payment claim ($3,104,312.91 for EOT 001 and $740,105.10 for EOT 002); see page 314 of DAO1.

Notice of Arbitration	SOPA #1	SOPA #2	Potential SOPA?
Item	Description	TOTAL	First Payment Claim	Second Payment Claim	Third Payment Claim
1	Prolongation Costs
1.1	Personnel	3,865,144.29	3,844,418.01[19]
1.1.1	Cost personnel due to late start including costs of personnel due to longer duration of works (1A + 1B)	2,595,996.54
1.2	Site Running Facilities	1,093,375.18	284,347.64
2	Procurement Premiums
2.1	Foundations & Earthworks	23,484,544.30	23,336,123.96
2.2	MV Trenching	6,977,446.72	5,729,551.57
2.3	Thickening	7,591,882.22	9,517,947.36	12,780,455.10
3	Other (Additional Costs)
3.1	Purchase of Additional Steel	1,126,643.75
3.2	Double handling costs	73,370.50
3.3	Steel rectification costs	122,273.25
3.4	Storage costs	996,635.09
3.5	Cost of Money	252,650.54
3.6	Crane costs - 3 Cranes Day vs 2 Crane Day/Night	6,206,356.71
3.7	Transport	55,651.90
3.8	Warranty Extension (Defects liability period)	425,668.40
4	Overheads
4.1	12% for overheads	6,584,116.73	1,637,605.56	2,800,334.88	2,221,200.80
TOTAL	61,451,756.11	15,284,318.57	26,136,458.84	20,731,207.47

Issues for determination

Goyder contends the Second Adjudication Determination is fatally flawed on the following grounds:
1.Section 22(4) of the Act.
2.By reason of the prohibition on the re-agitation of claims in adjudications variously categorised as abuse of process, issue estoppel, res judicata, Anshun estoppel and/or adjudication estoppel.
3.The Adjudicator lacked jurisdiction.
Goyder challenged the validity of the Third Payment Claim insofar as it claimed delay costs. On Goyder’s case, the Third Payment Claim should be prohibited from proceeding to a Third Adjudication Determination.
Goyder contends its grounds of challenge raise a number of issues as follows:
1.whether, in making the Second Adjudication Determination, the Adjudicator made a jurisdictional error in failing to apply s 22(4) of the Act and thereby failing to give to the delay claim the same value as determined in the First Adjudication Determination;
2.whether the Second Payment Claim and/or the Second Adjudication Application was an abuse of process;
3.whether providing an adjudication certificate under s 24 of the Act in respect of the Second Adjudication Determination or filing such a certificate under s 25 of the Act would be an abuse of process; and
4.whether making the Third Payment Claim is an abuse of process.
Overview of Goyder’s submissions
Goyder contended the Adjudicator erred in the Second Adjudication Determination on the basis he:
failed to exercise the task required of him by s 22(4) of the Act; and
wrongfully permitted GE-Elecnor to re-agitate the claim for delay costs arising out of the alleged extension of time determined of 118 days.
Goyder did not challenge the finding of the Adjudicator that GE-Elecnor is entitled to an EOT of 118 days which it will challenge in arbitration. For the purposes of these proceedings, Goyder accepted GE-Elecnor is entitled to an EOT of 91 days for EOT 001 for site access delay for Phase 3 permitted activities from 24 March to 23 August 2022 and 96 days, of which 69 were co-critical, for EOT 002 for site access delay for Phase 2 permitted activities from 7 March to 7 July 2022.
Goyder did not challenge GE-Elecnor’s entitlement to seek recovery of alleged delay costs pursuant to the Act while an arbitration is proceeding. However, it contends that GE-Elecnor could and should have made the whole of the $61.4 million claim in the First Payment Claim instead of making successive payment claims, “picking off different line items on successive occasions and revising and recycling failed elements”.
The thrust of Goyder’s case is that the Second and Third Payment Claims each impermissibly seek to re-agitate a claim which was made in the First Payment Claim and determined in the First Adjudication Determination. On Goyder’s case, the First Adjudication Determination fully determined GE-Elecnor’s entitlement to delay costs arising out of an EOT of 118 days.
On Goyder’s case, the construction work to which the delay costs were added by way of increased price was the construction work which would have been carried out within the 118 day period of delay but for that delay. It therefore contended that in the First Adjudication Determination, the Adjudicator determined the value of the construction work that would have been performed in the 118 days but for the delay. As a result, the Second Adjudication Determination required the Adjudicator to determine the value of precisely the same construction work.
Goyder contended the Adjudicator was required by s 22(4) of the Act to give that work the same value as previously determined, namely $3.1 million, but instead he impermissibly added $21 million plus 12 percent in overheads for the same 118 days. Goyder submitted that the same work again will be valued if the Third Adjudication Application proceeds.
On Goyder’s position, s 22(4) does not concern whether a particular kind of alleged cost has or has not been advanced previously. Rather it is concerned with the value of construction work which has been valued in a previous adjudication. Goyder submitted this is not a case in which the exception to s 22(4) applies. It contended the procurement premiums were incurred in 2022 or 2023 so there was no change in value between the First Adjudication Determination and the Second Adjudication Determination.
On Goyder’s position, the Adjudicator erred in finding the construction work and goods and services in the Second Adjudication Application were separate and did not overlap with the construction work and goods and services in the First Adjudication Determination. Further, Goyder criticised the Adjudicator’s finding the exception in s 22(4) applied and GE-Elecnor was entitled to another $21 million in delay costs for the same 118 days extension. Rather than valuing a change in the value of construction work, Goyder submitted the Adjudicator was revisiting his previous valuation of the same construction work to take account of changes in the amounts claimed. On Goyder’s position, the work was already valued, as set out in the notice of arbitration.
In addition to relying on s 22(4) of the Act, Goyder contended concepts of abuse of process prevent re-agitation of the delay. Goyder contended for the purposes of abuse of process, the focus is on whether the same claim has been made or could have been made in a previous payment claim. Goyder’s case on abuse of process was that the claim for delay costs from the 118 days of delay was a single claim and it was an abuse to re-agitate it. Insofar as the procurement premium head of claim was not previously advanced, it was an abuse of process to seek recovery because the head of claim could and should have been advanced in the First Payment Claim. On Goyder’s case, the entitlement to delay costs had already been determined, the claim for delay costs was a single claim and the separate heads of claim were merely separate line items from the same claim.
Goyder contended that s 22(4) is jurisdictional. On Goyder’s position, if the work in question has previously been valued then, subject to the exception, an adjudication does not have jurisdiction to give that work a different value.
Goyder contended that the Second and Third Payment Claims were not valid payment claims and as such, the Adjudicator had no jurisdiction to make the Second Adjudication Determination and there is no jurisdiction for an adjudicator to make any determination on the Third Payment Claim.
Goyder acknowledges that the Second Payment Claim, the Third Payment Claim and the Second Adjudication Determination are severable and it would be appropriate for the Court to allow severability. However, Goyder contended severability would serve no useful purpose and should not be attempted. This is primarily because the separable part of the delay costs claim was less than the deduction allowed by the Adjudicator for liquidated damages. Accordingly, Goyder contended the Second Adjudication Determination should be quashed in its entirety.
Goyder contended the Court has power to restrain a threatened adjudication and the power should be exercised as a Third Adjudication process would be an abuse of process.
Overview of GE-Elecnor’s submissions
GE-Elecnor contended that Goyder’s case proceeded on an erroneous basis that delay costs and the work or goods or services to which they relate were the same thing. GE-Elecnor submitted the various delay cost claims were different and there had been no impermissible re-agitation of claims as between the First and Second Adjudication Determinations and the Third Payment Claim.
On GE-Elecnor’s case, a particular contractor was selected as the preferred civil BoP work sub-contractor. As a consequence of the delay, the particular contractor was no longer available to perform the work. The civil BoP works which would have been delivered by that sub-contractor were then delivered via a multi sub-contractor and self-delivery hybrid model. The MV Trenching and Electrical Reticulation works were also to be performed by one subcontractor (a different entity to the civil works subcontractor) but, as a result of the delay, a different procurement strategy was also employed.
GE-Elecnor submitted the fundamental premise of Goyder’s case was simply wrong because its entitlement to delay costs was not determined in the First Adjudication Determination. There were no overlapping heads of claim between the First and Second Payment Claims. On GE-Elecnor’s case, the prolongation and thickening claims made in the First Payment Claim and determined in the First Adjudication Determination were different to those in the Second Payment Claim determined in the Second Adjudication Determination. The prolongation and thickening claims made in the First Payment Claim were for indirect costs and the procurement premium claim made in the Second Payment Claim was for direct costs which are fundamentally different.

On GE-Elecnor’s position, the fact that amounts for delay costs relate to the same extension of time is not to the point. The claims in the Second Payment Claim were not determined in the First Adjudication Determination as they were entirely different claims.
GE-Elecnor submitted the Act excludes the jurisdiction of the courts to make an order in the nature of certiorari to quash an adjudicator’s determination for non‑jurisdictional error of law on the face of the record. Accordingly, for Goyder to succeed in quashing the Second Adjudication Determination it must establish jurisdictional error. On GE-Elecnor’s position, there cannot be jurisdictional error where the Adjudicator found there was no prior valuation to attract s 22(4) or alternatively that the exception to s 22(4) applied.
GE-Elecnor’s primary submission was there was no impermissible re‑agitation of claims. At least to some extent, the Act allows claims or similar claims to be the subject of successive payment claims and adjudication determinations because otherwise ss 13(6) and 22(4) of the Act would have no work to do.
GE-Elecnor disputed any requirement for all costs to have been claimed in the First Payment Claim on the basis that no provisions in the contract or in the Act provide that costs must be claimed once and for all under a certain head of costs such as delay costs. It pointed to statutory provisions which provide to the contrary, including s 32 of the Act.
In relation to indirect thickening costs, GE-Elecnor contended that the only common head of claim between the First and Second Payment Claims and the Third Payment Claim was the additional staff and overheads component. The value of that claim had changed on GE-Elecnor’s case because of an additional and separate claim for light vehicles and an increase in additional staff because of changes to the value of the work undertaken.
In relation to s 22(4), GE-Elecnor submitted three questions arise:
whether there was any valuation of construction work or related goods or services such that s 22(4) applied;
if there was, did the Adjudicator fail to apply s 22(4); and
if the answer to both questions is “yes”, was the failure by the Adjudicator a matter of jurisdiction?
GE-Elecnor contended that injunctive relief would be premature unless an adjudication application had been made and determined. It submitted that the complaint that the Third Payment Claim was an abuse is hypothetical, the Court should let the process run its course and treat judgment entered on a subsequent adjudication as an abuse of process if the adjudication is invalid.
Is there a factual overlap in costs and if so, to what extent?
As is evident from the annexure to the affidavit of Mr Joven,[20] set out in part above, the prolongation costs claimed in the First Payment Claim were claimed only in the First Payment Claim. The Second and Third Payment Claims do not include any amount on account of prolongation costs. The First Payment Claim does not include any amount on account of procurement premiums. The Second Payment Claim includes procurement premiums for the civil BoP Foundation and Earthworks component of works. The Third Payment Claim does not include any such amounts. The Second Payment Claim does not include any amount on account of procurement premiums in respect of MV Trenching and Electrical reticulation, whereas the Third Payment Claim includes amounts described in that way.
[20] Affidavit of Jose Antonio Joven made on 30 July 2024 (FDN 26), 11.
It is thus apparent that as between the First, Second and Third Payment Claims, while procurement premiums are claimed in both the Second and Third Payment Claims, procurement premiums in relation to BoP Foundations and Earthworks are not replicated as between the payment claims and nor are MV Trenching and Electrical Reticulation procurement premiums.
There is, however, an apparent overlap in thickening costs claimed.
The First Payment Claim claimed $9.5 million on account of additional staff albeit nothing on account of additional vehicles for additional staff. The Third Payment Claim claimed $1.14 million on account of additional vehicles and $11.63 million on account of additional staff. In his affidavit, Mr Joven deposed to the First Payment Claim including a claim for additional personnel costs for Elecnor’s own personnel primarily relating to the supervision and management of the works. The amounts claimed were based in part on actual costs and in part on forecast costs. Actual costs were included up to September 2023 and the costs from October 2023 to May 2024 were based on forecast figures.[21] Mr Joven described the Third Payment Claim as including amounts for additional personnel costs for Elecnor’s own personnel primarily relating to the supervision and management of the works. The value of the thickened costs was said to have changed from the value claimed in the First Payment Claim. This was because some of the end dates for thickened resources became known and forecast hours became known. Further, some of the forecasts changed due to new staff and adjustment to the hours of existing staff. The claim for thickened personnel costs in the Third Payment Claim was based on actual costs to the end of May 2024.
[21] Exhibit JJ-1 to the affidavit of Jose Antonio Joven made on 30 July 2024 (FDN 26), 1010.
Accordingly, factually there was no overlap between the First, Second and Third Payment Claims for prolongation and procurement premiums. However, there was some overlap as between the First and Third Payment Claims in relation to thickening.
I address the consequences of the lack of overlap and the extent of overlap below.
Summary of the Act
The parties’ submissions primarily focussed on s 22(4) of the Act to which I will turn below. It is necessary to consider the provisions of the Act as a whole in order to understand the parties’ submissions and the authorities which address that Act.[22]
[22] There is similar legislation in other States which is addressed in authorities to which I refer below. The Act is substantially based upon the New South Wales equivalent legislation.
The Act has as its object ensuring that a person who undertakes to carry out construction work under a construction contract is entitled to receive and recover progress payments.[23] The Act does not limit any other entitlement a claimant may have under a construction contract or otherwise for recovering any other entitlement.
[23] The Act, s 3.
The Act defines “progress payment” as a payment to which a person is entitled under s 8. “Claimed amount” means the amount of a progress payment claimed to be due for construction work carried out or for related goods and services supplied, as referred to in s 13.
“Reference date” is defined to mean a date determined by, or in accordance with, the terms of the contract as the date on which a claim for a progress payment may be made in relation to work carried out or undertaken to be carried out or related goods and services supplied or undertaken to be supplied under the contract. In the case in which the contract makes no express provision with respect to the matter, reference date is defined to be the last day of the named month in which the construction work was first carried out or the related goods and services first supplied and the last day of each subsequent named month.
Construction work is defined in s 5 of the Act. The definition includes a range of kinds of work, such as construction, alteration, repair, restoration, maintenance and so on and includes any operation that forms an integral part of, or is preparatory to, such work. I discuss further below the concept of delay costs and its relationship to construction work.
The Act provides for rights to progress payments. On and from each reference date under a construction contract, a person who has undertaken to carry out construction work under a contract or to supply related goods and services is entitled to a progress payment.[24] The amount of a progress payment to which a person is entitled is to be the amount calculated in accordance with the terms of the contract. If the contract does not provide for such calculation, then the amount is calculated on the basis of the value of the construction work carried out or undertaken to be carried out or of related goods and services supplied or undertaken to be supplied under the contract.[25]
[24] The Act, s 8.
[25] The Act, s 9.
Construction work is to be valued in accordance with the terms of the contract. If the contract does not make express provision for valuation, the Act sets out the relevant factors to be taken into account.[26] Similarly, related goods and services are to be valued in accordance with the terms of the contract or, in the absence of an express provision, by reference to considerations set out in the Act.[27]
[26] The Act, s 10.
[27] The Act, s 10(2).
The Act provides for the due date upon which a progress payment becomes due and payable and for interest paid on unpaid amounts.
A person who is entitled to a progress payment may serve a payment claim on a person who is or may be liable to make the payment. The payment claim must identify the construction work or related goods and services to which the progress payment relates and indicate the amount of the progress payment claimed to be due.[28]
[28] The Act, s 13(2).
A payment claim may be served only within the period (whichever is the later) of the period allowed for by the terms of the contract or within six months after the construction work to which the claim relates were last carried out or the related goods and services were last supplied.[29]
[29] The Act, s 13(4).
Sub-sections 13(5) and (6) provide as follows:
(5) A claimant cannot serve more than 1 payment claim in respect of each reference date under the construction contract.
(6) However, subsection (5) does not prevent the claimant from including in a payment claim an amount that has been the subject of a previous claim.
A respondent to a payment claim may reply to the claim by providing a payment schedule. Among other things, a payment schedule must indicate the amount of the payment, if any, the respondent proposes to make.[30] Where the amount is less than that claimed, reasons must be provided.[31] If the respondent provides a payment schedule in an amount less than the claimed amount, the claimant may apply for adjudication of a payment claim.[32]
[30] The Act, s 14.
[31] The Act, s 14(3).
[32] The Act, s 17.
It is the duty of an authorised nominating authority to which an adjudication application is made to refer the application to an adjudicator as soon as practicable.[33] The respondent may lodge a response to the adjudication application. The respondent cannot include in the adjudication response reasons for withholding payment unless those reasons have already been included in the payment schedule provided to the claimant.[34]
[33] The Act, s 17(6).
[34] The Act, s 20(4).
Section 22 of the Act sets out the matters the adjudicator is to determine and the matters the adjudicator is to consider in determining an adjudication application. The adjudicator determines the amount of the progress payment (if any) to be paid, the date on which such amount became payable and the rate of interest payable.[35] The adjudicator is to consider only the provisions of the Act, the provisions of the contract, the payment claim together with submissions and documents duly made by the claimant in support of the claim, the payment schedule, if any, together with the submissions and documents duly made by the respondent in support of the schedule and the results of any inspection carried out by the adjudicator.[36] The adjudicator is required to provide written reasons.[37]
[35] The Act, s 22(1).
[36] The Act, s 22(2).
[37] The Act, s 22(3).
Section 22(4) of the Act provides as follows:
If, in determining an adjudication application, an adjudicator has, in accordance with section 10, determined—
(a)the value of construction work carried out under a construction contract; or
(b)the value of related goods and services supplied under a construction contract,
the adjudicator (or any other adjudicator) is, in any subsequent adjudication application that involves the determination of the value of that work or those goods and services, to give the work (or the goods and services) the same value as that previously determined unless the claimant or respondent satisfies the adjudicator concerned that the value of the work (or the goods and services) has changed since the previous determination.
Accidental slips or omissions, clerical mistakes, material miscalculation of figures and other mistakes can be corrected.[38]
[38] The Act, s 22(5).
If an adjudicator determines an amount is payable, the respondent is obliged to pay that amount within a timeframe specified by the Act.[39] In the event of failure to pay part or the whole of the adjudicated amount, the claimant may request the issue of an adjudication certificate which can be filed as a judgment for a debt in a court of competent jurisdiction and enforced accordingly.[40]
[39] The Act, s 23.
[40] The Act, ss 24, 25.
In any proceedings to have the judgment set aside, the respondent is not entitled to bring a cross claim or raise a defence concerning matters arising under the construction contract or challenge the adjudicator’s determination and is required to pay into court as security the unpaid portion of the adjudicated amount pending final determination.[41]
[41] The Act, s 25(4).
The Act provides for a new adjudication application to be made in certain circumstances, which relate to an adjudicator failing to accept an adjudication application within the specified timeframe or failing to determine the application within a specified timeframe or notifying the parties the adjudicator has withdrawn.[42]
[42] The Act, s 26.
Section 32 provides that, subject to s 33, nothing in Part 3 (procedure for recovering progress payments) affects any rights a party may have under a construction contract or under Part 2 (progress payments) or may have apart from the Act in relation to anything done or omitted to be done under the construction contract. It further provides that nothing done under or for the purposes of Part 3 affects any civil proceedings arising under a construction contract other than as provided for by s 32(3). That subsection requires a court or tribunal to allow for an amount paid to a party for the purposes of Part 3 in any order or award made. A court or tribunal may make orders it considers appropriate including for restitution for amounts paid. Section 33 prevents parties from contracting out of the Act.
The mischief addressed by sub-ss 13(5), 13(4) and 22(4) was expressed in the second reading speech for the Building and Construction Industry Security of Payment Amendment Bill 2002 (NSW).[43]The second reading speech referred to the provisions as restricting claimants to one claim in respect of each reference date and limiting how long after construction work is completed a claimant can continue to make payment claims. The second reading speech characterised the amendments as designed to prevent abuses of the intention of the legislation by claimants. It referred to adjudicator shopping, being the practice of a dissatisfied claimant making repeated adjudication applications until the claimant gets the adjudication decision the claimant wants. The remedy referred to in the second reading speech was said to be provided in s 22(4), that is, if one adjudicator has decided that work or goods and services have a certain value, a subsequent adjudicator will have to give the work, goods or services the same value. An exception is where the adjudicator is satisfied the value of the work, goods or services has changed since the previous adjudication.
[43] These provisions were included in the Act in substantially identical terms.
Characterisation of delay claims
An important plank in Goyder’s argument was the contention that delay costs arising from the EOTs granted to GE-Elecnor constitute a singular claim for delay costs. Goyder contended the work to which the delay costs added by way of increased price was the construction work which would have been carried out within the 118 day period of delay but for that delay.
Goyder characterised the work which would have been carried out in the delay period as early bulk earthworks of the kind required to construct access roads, construct hard stands at each location on which a wind turbine is to be erected and to create trenching for medium voltage cables which will run between the turbines. Counsel for Goyder submitted that attention must be focused on the work which would have been done rather than the line-by-line cost items or heads of claim said to arise. Counsel drew an analogy with a plaintiff injured in a road accident being restricted to one claim for different heads of damage.
GE-Elecnor disputed that delay costs constitute a single one-off claim. Counsel characterised the analogy with the personal injury claim as an anathema to the Act.
GE-Elecnor contended that within the scope of work, GE-Elecnor was obliged to perform a significant number of individual items of construction work and related goods and services within the meaning of the Act. In relation to direct procurement premiums, the head of claim was divided into civil BoP premiums and MV Trenching and Electrical premiums. Civil BoP premiums were claimed in the Second Payment Claim and the MV Trenching and Electrical premiums in the Third Payment Claim. Accordingly, GE-Elecnor says thickening costs changed and procurement premiums related to an entirely different scope of work.
GE-Elecnor pointed to the fact that the First Adjudication Application sought partial payment of total delay costs, thus making clear it was not a claim for all delay costs.
Counsel for GE-Elecnor did not accept that the relevant construction work in the context of delay costs is the actual works which would have been performed in the period of the EOT. Counsel contended that delay costs are standalone under cl 20 of the contract and under the Act and there is no requirement to attach delay costs to the actual works which would have been performed.
Contractual provisions in relation to works
Consideration of the proper characterisation of delay claims and resolution of whether delay costs constitute a singular claim commences with the provisions of the contract.
As set out above, the contract provides for a range of different components of work to be performed, including civil BoP earthworks claims and MV trenching works. Within each, a myriad of different items of works are required to be performed.
On GE-Elecnor’s case, there are a significant number of individual items of construction work and related goods and services referred to within the specifications.
In accordance with the program for the Stage 1A contract, the civil works for the transport route and road and intersection upgrades were due to commence on 19 March 2022 and bulk earthworks were due to commence on 29 April 2022.[44] Schedule 8 of the Stage 1A contract identifies nominated sub-contractors for the civil works.
[44] Schedule 21 of the Stage 1A contract.
The works which would have been performed in the 118 days period encompassed, at a high level, both civil BoP and MV Trenching and Electrical Reticulation works which were different packages of work.
EOT 001 related to site access delay for Phase 3 permitted activities and EOT 002 for site access delay for Phase 2 permitted activities for a different but overlapping period. The permitted activities were broadly described but of differing natures.
I agree with Goyder that the two overlapping EOT claims arose from a common underpinning cause, that is, a delay in access to the site by reason of delays in obtaining necessary environmental approvals. Those delays gave rise to two overlapping EOT periods. However, I do not consider that it necessarily follows that delay costs arising from the delay constitute a singular claim for delay costs. I also do not consider that it necessarily follows that delay costs are to be characterised as referable to, or to be treated as, costs of the construction works which would have been undertaken in the 118 day EOT period.

Goyder criticised GE-Elecnor for referring to components or types of cost as separate claims. However, the contract envisages claims for amounts in the form of claims for costs which have directly and necessarily arisen as a result of the EOT.
Under the contract, a delay cost event gives rise to an obligation to pay GE‑Elecnor “extra costs”. If GE-Elecnor considers other amounts are payable to it (which includes amounts for delay costs) it is entitled to make a claim for payment under cl 20 of the contract. Any payment made is only on account. The valuation of delay costs is calculated by reference to components of cost.
There are no express provisions in the contract which define or characterise delay claims in a manner which expressly or by necessary implication gives rise to the conclusion that delay costs arising from an extension of time event necessarily constitute a singular claim. Nor are there any express provisions which require a claim for delay costs on account of a delay event to be submitted in one and one only payment claim.
The contract expressly provides for amendments of claims for EOTs. In a case in which an amendment to extend a previously accepted EOT is accepted, the contract must contemplate the possibility of more than one delay cost claim referable to the same underlying cause. In the case of an accepted EOT and accepted delay cost claim made in a progress payment claim, the contract does not preclude a further claim for delay costs arising in later periods of time which can be established to meet the contractual requirements in cl 13.11. Put differently, there are no provisions in the contract which require GE-Elecnor to wait until all potential costs which may fall within cl 13.11 from an EOT have been incurred before making a claim for amounts in a progress payment which it asserts fall within the entitlement in cl 13 of the contract.
Further, the contract does not expressly require GE-Elecnor to substantiate the entitlement to delay costs by reference only to the specific works which would have been carried out during the period for which the extension of time is granted. Clause 3 of schedule 5 requires GE-Elecnor to provide the claim for delay costs with all supporting calculations and data and other information reasonably requested for the purposes of making the determination of valuation. Goyder’s obligation is to pay “such extra costs as are necessarily and directly incurred in connection with the extension” by reason of the delay cost event. The amounts claimed are costs. The required connection is with the extension. It is conceivable that costs properly falling within the description in cl 13.11 may arise in different ways by reference to the construction works. Such costs could be referable to work adversely impacted by delay which was to be, and was, carried out within the extension period; to work which was not to be carried out within the extension period but was so carried out as a result of scheduling changes resulting from delay; to work which would have been, but was not carried out at all, in the extension period as a result of delay or to costs properly characterised as falling within the contractual provisions even if not directly associated with the work which would have taken place within that extension period.
In my view, properly construed, the contract does not expressly or by necessary implication limit GE-Elecnor to claiming delay costs in one payment claim. It enables GE-Elecnor to claim for “amounts” which could include a claim to entitlement to a component of delay costs. The provisions in the contract in relation to delay claims do not require the characterisation of the delay cost claims for prolongation, thickening and procurement premiums as a singular claim.
For the reasons I address separately below, I also consider the provisions of the Act do not require the characterisation of the delay claims as a singular claim or compel all delay costs claimed from an extension of time to be claimed in only one progress payment or adjudication application.
Nature of the delay claims and connection with construction work under the Act
Entitlement to a progress claim under s 8 of the Act is not limited to construction work actually performed or the actual supply of related goods and services. Persons who have undertaken to carry out construction work or supply related goods and services are given the entitlement to a progress payment. Section 8 must be read together with the definition of progress payment, which refers to a payment “for construction work” and s 13 which refers to a payment claim identifying the “construction work … to which the progress payment relates”.
I turn now to consider some relevant interstate authorities. Those authorities must be considered in the context of the legislation in force from time to time in those jurisdictions. The provisions of the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the NSW Act”) are relevantly similar to those of the Act.
In Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd (“Climatech”),[45] the New South Wales Court of Appeal considered whether a claim for “delay damages” as provided for in a construction contract was not a claim for construction work. Justice Hodgson repeated views expressed by him in Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (“Hargreaves”)[46] as follows.
[45] [2005] NSWCA 229.
[46] [2005] NSWCA 228; (2005) 63 NSWLR 385.
His Honour said the definition of “progress payment” in s 8 does not limit the payment to payment for construction work and/or related goods and services nor does the amount of the progress payment, as dealt with in s 9, impose such a limit. While s 13 requires a payment claim to indicate the claimed amount which is defined as an amount claimed to be due “for” construction work or related goods and services supplied, it is the payment claim which is adjudicated pursuant to s 17. While giving some support to the argument that an adjudicator can only include in a progress payment amounts claimed to be due for construction work carried out and/or for related goods and services supplied, Hodgson JA said the terms of s 13 spoke against that construction. His Honour considered it by no means clear that “carried out” and “supplied” should be given a strict temporal connotation.[47] Section 9(a) strongly suggested that in the case of a construction contract providing for progress payments to include certain amounts, such amounts are to be included in progress payments required by the legislation whether or not they are for construction work or related goods and services. That, in turn, suggests any requirement from s 13 and the definition of “claimed amount” that the progress payment be “for” construction work carried out or related goods and services supplied should not be given a narrow construction.[48]
[47] Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd [2005] NSWCA 228; (2005) 63 NSWLR 385 at [39] see also, Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 at [22].
[48] Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd [2005] NSWCA 228; (2005) 63 NSWLR 385 at [40] see also, Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 at [22].
The fact a particular amount may be characterised by a contract as damages or interest could not be conclusive as to whether or not it was for construction work carried out or related goods and services supplied. In his Honour’s view, any amount that a construction contract “requires to be paid as part of the total price of construction work is generally…an amount due for that construction work”.[49] His Honour characterised delay damages payable for an extension of time for a compensable cause as additional amounts which may become due and payable under the contract, which are then to be included in progress payments and thus prima facie within s 9(a).
[49] Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd [2005] NSWCA 228; (2005) 63 NSWLR 385 at [41] see also, Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 at [22].
Justice Hodgson then said:[50]
If in substance they represent the increased cost or price of construction work actually carried out, in my opinion they are clearly for construction work carried out. If they represent the cost or price of goods or services actually supplied in connection with the construction work under the contract, they are for related goods or services supplied, even if not for construction work carried out.
If they represent off-site costs (such as office overheads) or other on-site costs, it may be a question of fact and degree whether they are for construction work carried out or for related goods and services supplied. They would in my opinion properly be regarded at least as part of the price for the totality of the construction work when completed. And it would seem artificial to say that they are excluded from the Security of Payment Act if they are not referable to work that has already been carried out, particularly when s 9(b) refers to the value of construction work undertaken to be carried out and related goods and services undertaken to be supplied. However, it is not necessary in this case altogether to exclude the possibility that some delay damages claimed under this contract might possibly not be for construction work carried out or related goods and services supplied within the definition of “claimed amount” in s 4; but it is certainly not obvious that this is so in relation to any of the claims in this case.
[50] Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd [2005] NSWCA 228; (2005) 63 NSWLR 385 at [43]-[44].
His Honour considered the relevant construction work or related goods and services must be identified sufficiently to enable the respondent to understand the basis of the claim. In the case of delay, it is generally sufficient that the basis of contractual entitlement be shown which would generally be enough to ground identification by inference of the construction work or related goods and services to which the payment relates.[51] It was therefore not to the point that the payment claim indicated the contractual basis was for delay damages rather than the supply of goods and services.
[51] Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 at [26].
Justice Ipp agreed with Hodgson JA for the reasons set out in paragraphs [38] to [45] of his reasons in Hargreaves that delay damages can amount to payments for construction work, that being sufficient to dispose of the appeal.[52]
[52] Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 at [34]-[36], citing Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd [2005] NSWCA 228; (2005) 63 NSWLR 385 at [38]-[45] (Hodgson JA).
In EnerMech Pty Ltd v Acciona Infrastructure Projects Aust Pty Ltd (“EnerMech”),[53] the New South Wales Court of Appeal considered whether or not a payment claim was invalid because it was not a claim for payment on account of construction work or related goods and services but in substance a claim for credit for amounts obtained as a result of recourse to security and for other amounts not on account of construction work or for related goods and services.
[53] [2024] NSWCA 162.
Justice Basten, with whom Meagher JA and Griffiths AJA agreed, considered that the NSW Act does not prescribe as an essential condition of the validity of a payment claim that it be “for construction work”. While it is necessary for a payment claim to assert an entitlement to payment for work performed pursuant to a construction contract, the fulfilment of that entitlement is a matter for determination by the adjudicator subject to limited rights of review for jurisdictional error.[54] I address EnerMech further below in the context of the discussion as to whether s 22(4) is jurisdictional.
[54] EnerMech Pty Ltd v Acciona Infrastructure Projects Aust Pty Ltd [2024] NSWCA 162 at [8].
The analysis in Hargreaves,[55] Climatech[56] and Enermech[57] does not support a conclusion that the Act requires a claimant or an adjudicator to identify the precise construction work to which a delay claim relates. It is necessary to show the basis of contractual entitlement, which generally will be sufficient to identify the construction work or related goods and services to which the payment relates. Delay costs may be properly characterised as part of the total price for the construction work when completed.
[55] [2005] NSWCA 228; (2005) 63 NSWLR 385.
[56] [2005] NSWCA 229.
[57] [2024] NSWCA 162.
It follows that I do not accept Goyder’s submission that the determination in the First Adjudication Determination was a determination of the value of the construction work that would have been performed within the EOT period. I also do not accept the criticism that in the Second Adjudication Determination the Adjudicator failed to identify the construction works to which the progress claim related.
I turn now to consider Goyder’s submission concerning the application of s 22(4) to the claims.
Is Does s 22(4) and/or its exception apply and is s22(4) jurisdictional?
Application of s 22(4)
Goyder contended that this is not a case in which the exception to s 22(4) applies. Goyder submitted that GE-Elecnor’s approach seeks in effect to amend the wording of s 22(4) to change a reference to the value of construction work to entitlement to a particular head of claim. It further contended that the $23 million claim for procurement premiums was ascertained in December 2023 as evidenced in the notice of arbitration; the premiums were incurred in 2022 or 2023 and there was no change in value between the adjudications.
On Goyder’s position, s 22(4) is not concerned with whether a particular dollar value has previously been determined but whether the value of a particular part of the construction work has been previously determined. Goyder contended it is not a matter of changing the way the claimant frames the claim or changing the dollar figure attached to the claim, but rather whether there is a change in value as a matter of objective fact.
GE-Elecnor’s point was s 22(4) did not apply to the Second Adjudication Determination because the relevant work or goods or services the subject of the Second Adjudication Determination were not valued in the First Adjudication Determination.
GE-Elecnor contended that if s 22(4) applies, the Adjudicator expressly applied the exception to that provision. Even if the Adjudicator’s findings on this basis could be said to be wrong, which GE-Elecnor did not accept, it contended there can be no challenge to a finding on this basis. GE-Elecnor submitted it is irrelevant that a claim under the same head was advanced in the earlier notice of arbitration. Further, GE-Elecnor’s position is that a failure to apply s 22(4) is not a matter of jurisdiction and not reviewable.
In John Goss Projects Pty Ltd v Leighton Contractors Pty Ltd (“John Goss”),[58] McDougall J pointed out the distinction between the calculation of the amount of a progress payment and the valuation of construction work. The issue pursuant to s 22(4) in this matter is whether in the First Adjudication Determination the Adjudicator in accordance with s 10 of the NSW Act valued construction work the value of which was to be determined in the Second Adjudication Determination and the value of which will be required to be determined in the Third Adjudication Determination, if it proceeds.
[58] [2006] NSWSC 798; (2006) 66 NSWLR 707 at [40].
In a case where the value of construction work or the value of related goods and services supplied has been determined in a previous adjudication, s 22(4) requires a subsequent adjudicator to give “that” work or “those” goods and services the same value as previously determined. This is subject to an exception where the subsequent adjudicator is satisfied that the value of the work or goods or services has changed since the previous determination.
In order to succeed in its contention that s 22(4) applied, Goyder had to establish that the determination of the value of the work in the Second Adjudication Determination was for “that” work previously valued in the First Adjudication Determination. Similarly, it must establish that the Third Adjudication Application seeks the determination of the value of “that” work valued in the First Adjudication Determination. The contention depends upon success in the arguments that the costs claimed were only heads of claim within one singular claim for the same construction work which would have been carried out in the 118 day extension period.
In my view, that argument fails for the reasons I have articulated above. Properly characterised, the delay costs included in the three payment claims do not constitute a single claim for the same construction work which would have been carried out in the EOT period. Accordingly, as there was no overlap between the prolongation and procurement premium claims as between the First and Second Claims and First and Second Adjudication Determinations and the Third Payment Claim, s 22(4) did not apply to the prolongation and procurement premium claims. The Adjudicator in the Second Adjudication Determination did not value “that” work or “those” goods or services which he valued in the First Adjudication Determination. The Adjudicator in the Second Adjudication Determination therefore was not bound in the Second Adjudication Determination to apply the same value to the delay costs addressed in the First Adjudication Determination.
The thickening costs claims raise different issues to which I return below.
Jurisdiction
Determinations made by adjudicators pursuant to the provisions of the Act are amenable to orders in the nature of certiorari for jurisdictional error.[59] However, the court does not have jurisdiction to make orders in the nature of certiorari to quash an adjudicator’s determination for errors on the face of the record.[60]
[59] Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 78 NSWLR 393, overturning Brodyn Pty Ltd v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421 in this respect.
[60] Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1.
In case I have erred in my conclusion that s 22(4) does not apply, I proceed to address the arguments in relation to whether s 22(4) is a matter of jurisdiction.
Goyder contended s 22(4) is jurisdictional based on the reasoning of Allsop P in Dualcorp Pty Ltd v Remo Constructions Pty Ltd (“Dualcorp”),[61] and Kourakis CJ in Civil & Allied Technical Construction Pty Ltd v Resolution Institute (“CATCON”).[62]
[61] [2009] NSWCA 69; (2009) 74 NSWLR 190.
[62] [2019] SASC 193.
On GE-Elecnor’s case, s 22(4) is not jurisdictional. GE-Elecnor relied in part on the decision of Rothnere Pty Ltd v Quasar Constructions NSW Pty Ltd (“Rothnere”).[63] However, Goyder submitted that Rothnere[64] does not assist GE‑Elecnor as it is a first instance decision pre-dating Dualcorp,[65] and the concept of basic and essential requirements set out in Brodyn Pty Ltd v Davenport (“Brodyn”)[66] is of no continuing legal significance following the decision in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (“Chase”).[67] GE-Elecnor disputed the contention that Brodyn is of no continuing significance and submitted Brodyn[68] remains good law as to what may give rise to jurisdictional error.
[63] [2004] NSWSC 1151.
[64] [2004] NSWSC 1151.
[65] [2009] NSWCA 69; (2009) 74 NSWLR 190.
[66] [2004] NSWCA 394; (2004) 61 NSWLR 421.
[67] [2010] NSWCA 190; (2010) 78 NSWLR 393.
[68] [2004] NSWCA 394; (2004) 61 NSWLR 421
Given the urgency of the matter, time does not permit a detailed consideration of the authorities on jurisdiction in the context of the Act. In my view the cases discussed below provide sufficient basis for concluding that s 22(4) is not a matter of jurisdiction.

Relief was granted in proceedings seeking prerogative relief commenced by Beno. On appeal, the Australian Capital Territory Court of Appeal concluded that the primary Judge did not err in granting relief to Beno. Justices Lee and Kennett reached the same conclusion but by different routes. Justice Elkaim, without rejecting Kennett J’s path, generally preferred that of Lee J, in particular his reliance on the ACT Act.
Justice Lee described the formal and substantive requirements for an adjudicator’s decision in s 24[173] as framing each adjudication as an independent exercise. Section 24(2) contains a list of mandatory considerations which does not include previous adjudication decisions.
[173] Section 24 of the ACT Act is relevantly similar to s 22 of the Act.
Justice Lee considered that s 24(4) expressly contemplates the circumstances in which the decision of a previous adjudicator will bind a subsequent adjudicator, expressly referring only to circumstances where an adjudicator has valued construction work or related goods and services.
After analysis of the reasons in Dualcorp[174] and other decisions referring to it, including Caltex Refineries (Qld) Pty Ltd v Allstate Access (Australia) Pty Ltd,[175] and CATCON,[176] Lee J stated that issue estoppel in the context of security of payment legislation deviates from the principles of issue estoppel as commonly understood. Even where the doctrine has been found to operate, it is characterised as narrow, inchoate, and based upon broader principles of preclusion.[177]
[174] [2009] NSWCA 69; (2009) 74 NSWLR 190.
[175] [2014] QSC 223 at [54]-[55].
[176] [2019] SASC 193.
[177] Harlech Enterprises Pty Ltd (ATF Harlech Family Trust) v Beno Excavations Pty Ltd [2022] ACTCA 42; (2022) 18 ACTLR 245 at [88].
Justice Lee considered the legislation manifests an intention to preclude abuse of the statutory scheme by repetitive claims for the same work or related goods or services including an abuse of the process of obtaining judgment. This intention is reflected in the provisions which have the following effect:
On and from each reference date a person is entitled to a payment.
A claimant must not render more than one payment claim for each reference date. There can only be one payment claim in relation to each reference date, precluding a claimant from pursuing a payment claim for a reference date which has already been the subject of adjudication.
The provision which mandates that if an adjudicator has valued construction work or related goods or services, the adjudicator or any other adjudicator is bound by that valuation in a later adjudication.
The provisions which enable an adjudication certificate to be entered as a judgment for debt and enforced. A court cannot enforce a judgment for the same debt more than once, thus, there cannot be two adjudication certifications with respect to the same work.[178]
[178] Harlech Enterprises Pty Ltd (ATF Harlech Family Trust) v Beno Excavations Pty Ltd [2022] ACTCA 42; (2022) 18 ACTLR 245 at [89].
Justice Lee considered the common law concept of issue estoppel is an inapt label to apply to the preclusion identified in Dualcorp[179] which was best described as an abuse of process. His Honour agreed with Kourakis CJ in CATCON[180] that the best frame of reference to speak of the extent of preclusion arising from a double adjudication is to treat the judgment on a second or subsequent adjudication as an abuse of process of the court faced with an attempt to enter judgment concerning a subsequent adjudication. However, it would also constitute a form of abuse of process if, before judgment, a party purported to re-agitate a claim which had already been decided. Not every repetition in a subsequent payment claim of a claim made in an earlier payment must amount to an abuse of process even if the earlier payment claim has been the subject of a determination. The relevant concept is an abuse of the processes of the Act, not an abuse of process at large. Specifically, it is an abuse of the processes of the Act designed to ensure that builders and subcontractors receive prompt and progressive payment for construction work performed or goods and services provided.
[179] [2009] NSWCA 69; (2009) 74 NSWLR 190.
[180] [2019] SASC 193.
Justice Lee also referred to Cadence in which Hammerschlag J did not conclude that the first adjudication gave rise to an issue estoppel but the second claim could not be legitimately pursued under the New South Wales legislation.[181]
[181] Harlech Enterprises Pty Ltd (ATF Harlech Family Trust) v Beno Excavations Pty Ltd [2022] ACTCA 42; (2022) 18 ACTLR 245 at [94], citing University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635 at [56].
Justice Lee eschewed the use of the term issue estoppel as consistent with recognising the starting point is the Act itself.
It followed that Beno was not precluded from restating the contentions previously made in the second adjudication. The two adjudications concerned different work completed years apart and there was no precluded re-agitation or attempt to value the same work anew.[182]
[182] Harlech Enterprises Pty Ltd (ATF Harlech Family Trust) v Beno Excavations Pty Ltd [2022] ACTCA 42; (2022) 18 ACTLR 245 at [100].
Justice Lee said there will be matters incidental and antecedent to a valuation determination which Parliament cannot have intended be open to abuse by dissatisfied or creative complainants. However, his Honour considered it important to bear in mind that the legislation’s purpose is to facilitate security of payment by creating a right to interim payment and to protect those payment claims once adjudicated on from interference. The purpose is not to protect the broader findings of adjudicators. Justice Lee considered this another indication that the only issue which cannot resurface and be reconsidered in a subsequent adjudication is the question of the value of work with respect to a particular reference date.[183] If an adjudicator was bound to a previous adjudicator’s determination as to matters such as the existence of a contract, the construction of it, and the agreed rate of payment, it would be inconsistent with the ability to turn his or her mind to the prerequisites to the exercise of power which are set out as mandatory considerations.
[183] Harlech Enterprises Pty Ltd (ATF Harlech Family Trust) v Beno Excavations Pty Ltd [2022] ACTCA 42 at [111].
Justice Kennett agreed with the outcome of the appeal but stated his reasons differently.
Justice Kennett accepted the possibility that a repetitious claim for the re‑agitation of contentions previously rejected could properly be characterised as an abuse of process and the court might grant injunctive relief on that basis. That would follow from the application of a doctrine based on protection of scarce resources and institutional integrity of courts and tribunals. However, that did not answer the question whether issue estoppel, with its distinct concerns and doctrinal foundations, limits the contentions that parties can rely on in an adjudication.[184]
[184] Harlech Enterprises Pty Ltd (ATF Harlech Family Trust) v Beno Excavations Pty Ltd [2022] ACTCA 42 at [19].
The matter submitted for adjudication is a payment claim. Nothing in the legislation suggests a decision on an adjudication is intended to be conclusive of rights under the contract. Section 38[185] of the legislation is to the contrary. Thus, the extent to which adjudication is final is circumscribed. The legislation creates a regime for interim payments, not a regime for enforcing contracts. Section 38 has the effect that an adjudication decision does not affect any right a party may have to a progress payment under the Act. Justice Kennett considered that read that way, s 38 left no room for any issue estoppel to arise at common law in an adjudication in respect of issues decided in a prior adjudication.[186] A number of aspects of the statutory context supported that conclusion including the nature and timing of the adjudication process, and construing s 24(4) as legislating against particular examples of re-agitation of settled issues.[187]
[185] Section 38 of the ACT Act is relevantly similar to s 32 of the Act
[186] Harlech Enterprises Pty Ltd (ATF Harlech Family Trust) v Beno Excavations Pty Ltd [2022] ACTCA 42 at [35].
[187] Harlech Enterprises Pty Ltd (ATF Harlech Family Trust) v Beno Excavations Pty Ltd [2022] ACTCA 42 at [36].
Justice Kennett disagreed with Dualcorp[188] to the extent the majority saw the result as flowing from principles of issue estoppel. He considered Dualcorp correct for the reasons given by Allsop P as founded on statutory provisions precluding repeat claims.[189]
[188] [2009] NSWCA 69; (2009) 74 NSWLR 190.
[189] Harlech Enterprises Pty Ltd (ATF Harlech Family Trust) v Beno Excavations Pty Ltd [2022] ACTCA 42 at [37], citing Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69; (2009) 74 NSWLR 190.
While rejecting the application of issue estoppel, Harlech countenances the grant of remedies based on abuse of the processes of the legislation.[190]
[190] ACTCA 42; (2022) 18 ACTLR 245.
Neither Dualcorp[191] nor Harlech[192] on the facts engaged Anshun[193] estoppel concepts.
[191] [2009] NSWCA 69; (2009) 74 NSWLR 190.
[192] [2022] ACTCA 42; (2022) 18 ACTLR 245.
[193] [1981] HCA 45; (1981) 147 CLR 589.
Based on Harlech[194] and CATCON,[195] I accept that concepts of abuse of process, in the sense of abuse of the processes of the Act, play a role in the context of payment claims and adjudications under the Act. While Lee and Kennett JJ in Harlech[196] approached the question differently, their conclusions both depended upon the construction of the legislation. In light of Kourakis CJ’s preference for the approach of Allsop P in Dualcorp[197] and the Australian Capital Territory Court of Appeal’s approach in Harlech,[198] I address the question of abuse of process from the perspective of the construction of the Act.
[194] [2022] ACTCA 42; (2022) 18 ACTLR 245.
[195] [2019] SASC 193.
[196] [2022] ACTCA 42; (2022) 18 ACTLR 245.
[197] [2009] NSWCA 69; (2009) 74 NSWLR 190.
[198] [2022] ACTCA 42; (2022) 18 ACTLR 245.
Security of Payment Act provisions
As set out above, on and from each reference date under a construction contract s 8 provides an entitlement to a progress payment to a person who has undertaken to carry out construction work or to supply related goods and services under a construction contract. A reference date is a necessary prerequisite to the entitlement to issue a progress payment. Section 8 attaches the right to a progress payment to reference dates rather than to specific work. A reference date is defined in the Act in relation to when a claim for a progress payment may be made, not by reference to a period of time during which specific work was carried out. This is made clear by reference to work “undertaken to be carried out” or goods and services “undertaken to be supplied”. The provisions of a contract, however, may contain such a requirement. When the contract does not provide a date for making a progress payment, the definition captures a period of time from the last day of the month in which construction work was first carried out and ending on the last day of each subsequent month.
In this case, each calendar month constitutes a reference date if GE-Elecnor considers there has been completion of a milestone event or other amounts are payable. The manner in which amounts which constitute delay claims are calculated and valued is described above.
Section 13 of Act requires a payment claim to identify the construction work or related goods and services to which the progress payment relates and indicate the amount claimed. As discussed above, in the case of delay claims, the basis of contractual entitlement is to be shown which generally will be enough to identify by inference the construction work or related goods and services to which the payment relates.[199]
[199] Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 at [26] (Hodgson JA).
A payment claim must be served within whichever is the later of the contractual period or six months after the construction work to which the claim relates was last carried out. Section 13(4) thus requires a payment claim to include a claim for payment for some work performed in the previous six month period.[200]
[200] Estate Property Holdings Pty Ltd v Barclay Mowlem Construction Ltd [2004] NSWCA 393 at [21] (Hodgson JA, Mason P and Giles JA agreeing).
Section 13(5) precludes a claimant serving more than one payment claim in respect of each reference date. However, there is no legislative provision which provides that specific work performed in the period of time encompassed by a reference date can only be claimed in a payment claim for that specific reference date. Subject again to the terms of the contract and re-agitation issues, the Act does not limit a claimant to only one opportunity to make a claim for ongoing construction work (or ongoing provision of related goods and services) in a payment claim for a reference date corresponding to the timeframe within which the specific construction work was performed. Allowing a claim to be made up to six months after construction work was carried out is inconsistent with that position.
In Brodyn, Hodgson JA considered the only non-contractual limit to the occurrence of reference dates is that flowing from s 13(4) such that reference dates cannot support serving a payment claim outside the time frames allowed for by that subsection.[201] This conclusion was supported by s 13(6) which in his Honour’s view indicates that successive payment claims do not necessarily have to be in respect of additional work.[202] This was particularly so by reason of s 13(3)(a) which allows amounts for which a party is liable under s 27(2A), being losses and expenses arising from suspension of work, to be included in payment claims. Thus, the subsection contemplates further payment claims for amounts of this nature being made progressively.[203]
[201] Brodyn Pty Ltd v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421 at [63].
[202] Brodyn Pty Ltd v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421 at [64].
[203] Brodyn Pty Ltd v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421 at [64].
Section 13(6) expressly accommodates the inclusion in a payment claim of an amount included in a previous payment claim. GE-Elecnor’s counsel accepted that s 13(6) of the Act accommodates the circumstances of a cumulative payment process within a construction contract but contended it also enabled the inclusion of an amount included in a previous payment claim subject to the qualification that such amount has not been included in a payment claim the subject of an adjudication determination. It is not necessary for me to determine the potential ambit of s13(6) for this matter. It is sufficient for present purposes to acknowledge that the Act does not prevent a claimant in all circumstances from including amounts which have been included in a prior payment claim. Some level of overlap is expressly envisaged by ss 13(6) and 22(4). Section 22(4) contemplates the prospect of some overlap and addresses it to the extent that a later adjudicator is bound by an earlier determination of “that” work or “those” goods and services unless satisfied the value has changed. By expressly allowing for overlap and articulating the consequences, by inference the subsection does not preclude the inclusion in later payment claims of claims for value other than for “that” work and “those” goods and services.
In my view it follows that, subject to the terms of any contract, the provisions of the Act do not require a claim for all (non-overlapping) components of delay costs incurred by reason of a delay event to be claimed in one and one only progress claim. Further, such a conclusion would be inconsistent with the purposes of the Act.
I therefore do not consider it was an abuse of the processes of the Act for GE‑Elecnor to include different, non-overlapping, aspects of delay costs in different payment claims. Put differently, it was not an abuse of process to fail to include all aspects of delay costs in one payment claim.
It follows that I reject Goyder’s contention that it was, and would be, an abuse of process for GE-Elecnor to include in a payment claim after the First Payment Claim any claim for aspects of delay costs which were not included in the First Payment Claim and addressed in the First Adjudication Determination.
This leaves for consideration the overlap between the claims for thickening costs.
Re-agitation of thickening costs claim
As set out above, there is an overlap in the thickening costs claim as between the First Adjudication Determination and the Third Payment Claim and Third Adjudication Application.
Goyder relied significantly on Cadence.[204] It contended I am bound to follow Cadence by reason of Kourakis CJ’s decision in CATCON.[205]
[204] [2009] NSWSC 635. Sections 13 and 22 of the NSW legislation at the time were relevantly the same as the equivalent provisions in the Act.
[205] [2019] SASC 193.
Turning to the facts in this matter, in the First Adjudication Determination, the Adjudicator was not satisfied on the information provided that, among other things, the indirect resources claimed in the thickening claim were additional resources required due to the delays the subject of EOT 001 and EOT 002. Accordingly, GE-Elecnor had not discharged its burden of proof to establish entitlement to thickening of indirect resources claim and was not entitled to any amount for the thickening claim.
For the purposes of my decision, it is not necessary to consider the extent to which s 22(4) may inhibit repetition, address concerns such as those expressed by McDougall J with broader aspects of statements made by Macfarlan JA in Dualcorp[206] and Hammerschlag J in Cadence[207] or address Goyder’s submission that s 22(4) only allows a subsequent adjudicator to value the change in value of construction work. Section 22(4) does not apply in this case because the Adjudicator did not determine the value of the thickening claim in the First Adjudication Determination, but instead rejected that claim.
[206] [2009] NSWCA 69; (2009) 74 NSWLR 190.
[207] [2009] NSWSC 635.
The Adjudicator’s conclusion that GE-Elecnor failed to establish the basis for the claim renders the claim for thickening costs made in the Third Payment Claim indistinguishable from the delay costs claim in Cadence.[208] The thickening costs claim in the Third Payment Claim is a claim for amounts included in the First Payment Claim and addressed in the First Adjudication Determination in circumstances where the Adjudicator determined nothing is due by Goyder to GE‑Elecnor. The thickening costs claim thus falls within the description given by McDougall J in Watpac[209] as one of the kinds of claims precluded by the legislation as an impermissible re-agitation by re-claiming thickening costs in respect of which the Adjudicator has already discharged the statutory function by rejecting the claim as lacking evidential foundation.
[208] [2009] NSWSC 635.
[209] [2010] NSWSC 168.
The fact that the Third Payment Claim includes additional amounts claimed in the First Payment Claim or amounts referable to a period after the First Payment Claim does not overcome this difficulty. The inclusion of the costs for light vehicles also does not justify a different conclusion. Thickening costs in the form of additional vehicle costs were not claimed in the First Adjudication Determination. However, the vehicle thickening costs are for light vehicles used by the thickened personnel in the thickening costs claim. Accordingly, the light vehicles thickening claim is inextricably related to, and reliant on, the success of the thickening claim for additional personnel. The Adjudicator rejected thickening costs for additional personnel on the basis GE-Elecnor failed to provide sufficient evidence to substantiate a connection between the alleged delay and the additional personnel thickened costs. If the vehicle costs been included in the same claim, such claim would necessarily have failed by reason of the failure to substantiate the necessary link with the additional personnel claimed. Accordingly, the claim for vehicle costs necessarily would entail re-agitation of the personnel costs claim and thus constitute an impermissible re-agitation of the claim for thickening costs in respect of which the Adjudicator had already discharge the statutory function in rejecting the claim.

This conclusion does not, of course, preclude GE-Elecnor from pursuing thickening claims in arbitration.
Notice of Arbitration
The issue of the notice of arbitration and its contents does not, in my view, impact on my conclusions or fetter GE-Elecnor in the manner in which it brought its payment claims and adjudication applications.
I reach this conclusion by reason of s 32 of the Act. That provision protects the contractual rights of parties. Relevantly in this case, that includes the right to arbitrate disputes which is provided for by the contract. The protections provided for by s 32 are broad. Section 32 provides that nothing done for the purposes of Part 3 affects any civil proceedings other than requiring a court or tribunal to allow for amounts paid to a party in making an order or award. It protects the rights a party may have under Part 2 (that is, the part providing for entitlements to claim progress payments) in respect of the contract. Consequently, use of the legislative provisions for recovering progress payments does not affect a party’s rights to claim entitlements in subsequent civil litigation. Equally, the existence of an entitlement to make claims in arbitration or litigation or the commencement of such does not preclude a party’s entitlement to claim progress payments under Part 2 of the Act.
Conclusion
For the reasons expressed above, I do not consider delay claims referable to EOT 001 and EOT 002 are properly characterised as a singular claim nor that the contract requires the inclusion of all components of such delay claim in one only progress payment claim. The failure to include all aspects of both in one payment claim is not relevantly an abuse of the processes of the Act.
This is not a case in which GE-Elecnor has sought to proffer the prolongation and procurement premium claim on one basis and then re-agitate them on a different basis. It is also not a case in which GE-Elecnor sought to get a better outcome in the Second Adjudication Determination than it obtained in the First Adjudication Determination nor is it seeking to achieve a better outcome in the Third Adjudication Application insofar as it relates to procurement premium claims.
Given my conclusions above, I dismiss the application and decline to grant relief insofar as the application related to the Second Adjudication Determination. The injunctive orders made in relation to the Second Adjudication Determination should be lifted.
However, I accept that the Court has the power to grant orders in relation to the thickening costs claim aspect of the Third Adjudication Application based on the decisions to which I have referred above. I do not accept GE-Elecnor’s submission that any orders should await the outcome of the Third Adjudication Application for the same reason Hammerschlag J rejected such a contention in Cadence.[210] On the basis of decisions including Dualcorp[211] and Cadence,[212] the aspect of the payment claim relating to the thickening costs is invalid and consequently the adjudicator will lack jurisdiction to address it.
[210] [2009] NSWSC 635 at [57]-[60].
[211] [2009] NSWCA 69; (2009) 74 NSWLR 190
[212] [2009] NSWSC 635.
Goyder accepts the invalid part of the Third Payment Claim can be severed but submitted that any Third Adjudication Application is foredoomed because of Goyder’s claim for delay liquidated damages. During submissions, GE-Elecnor’s counsel accepted the quantum of liquidated damages determined in the Second Adjudication Determination. However, GE-Elecnor’s counsel did not expressly address Goyder’s submission concerning the impact of the liquidated damages claim in the context of any orders which may be made concerning the Third Adjudication Application. I am not in a position to form a view whether the Third Adjudication Application is foredoomed in its entirety such that I should make orders in relation to the Third Adjudication Application in its entirety. Consequently, I propose to make orders addressing only the aspect of the Third Payment Claim and Third Adjudication Application which relates to thickening costs claims.
Orders
I will hear the parties in relation to the orders to be made.
I direct the parties to confer with a view to providing agreed draft minutes of order or, failing agreement, to provide draft minutes of order in the terms proposed by each party to give effect to these reasons.

February 2024 Payment Claim	April 2024 Payment Claim	July 2024 Payment Claim
Prolongation Costs
EOT 001
Indirect Costs – Staff	$ 3,104,312.91	Not Claimed	Not Claimed
Indirect Costs – Site running costs	$ 219,410.51	Not Claimed	Not Claimed
Overheads (12%)	$ 398,846.81	Not Claimed	Not Claimed
EOT 002
Indirect Costs – Staff	$ 740,105.10	Not Claimed	Not Claimed
Indirect Costs – Site running costs	$ 64,937.13	Not Claimed	Not Claimed
Overheads (12%)	$ 96,605.07	Not Claimed	Not Claimed
Subtotal Prolongation	$ 4,624,217.53	$ -	$ -
Thickening
Additional Staff	$ 9,517,947.36	Not Claimed	$11,638,868.80
Additional Vehicles	Not Claimed	Not Claimed	$ 1,414,586.30
Overheads (12%)	$ 1,142,153.68	Not Claimed	$ 1,533,654.61
Subtotal Thickening	$10,660,101.04	$ -	$14,314,109.71
Procurement Premiums
CBOP (Civils) – Foundations and Earthworks
Additional Direct Costs	Not Claimed	$23,336,123.96	Not Claimed
Overheads (12%)	Not Claimed	$ 2,800,334.87	Not Claimed
MV Trenching and Electrical Reticulation
Additional Direct Costs	Not Claimed	Not Claimed	$ 5,729,551.57
Overheads (12%)	Not Claimed	Not Claimed	$ 687,546.19
Subtotal Procurement Premiums	$ -	$26,136,458.83	$ 6,417,097.76
Total Delay Costs	$15,284,318.57	$26,136,458.83	$20,731,207,47

[2024] SASC 108

20 August 2024