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

Goyder Wind Farm 1 Pty Ltd (Goyder) appealed to the Full Court of the Supreme Court of South Australia against a decision that refused its application for relief concerning a second payment claim made by GE Renewable Energy Australia Pty Ltd (GE-Elecnor). The central dispute revolved around whether the principle of *Anshun* estoppel, or abuse of process, applied to subsequent payment claims and adjudication determinations made under the Security of Payment Act 2009 (SA) (SoP Act), and if so, whether it prevented GE-Elecnor from pursuing a second claim for delay costs related to extension of time claims.

The court was required to determine two primary legal issues. Firstly, whether the doctrine of *Anshun* estoppel, or the broader concept of abuse of process, could be invoked to preclude a party from making subsequent payment claims or pursuing adjudication determinations under the SoP Act, particularly when those claims or determinations could have been raised in earlier proceedings. Secondly, if the principle did apply, the court had to consider whether it operated to prevent GE-Elecnor from making and prosecuting its second payment claim for delay costs, which were linked to extension of time claims previously made.

The court reasoned that the *Anshun* estoppel principle, which prevents a party from raising in subsequent litigation claims or defences that could and should have been litigated in earlier proceedings, could apply to claims made under the SoP Act. This was because the Act, while providing a statutory regime for payment claims and adjudication, did not expressly exclude the operation of general law principles such as estoppel. The court noted that section 33 of the SoP Act renders void any contractual provision that purports to contract out of the Act or deter a person from taking action under it, but this did not preclude the application of general legal principles to prevent an abuse of process. The court found that GE-Elecnor's second payment claim, which sought delay costs that were arguably part of the dispute already referred to arbitration and partially adjudicated, could potentially be an abuse of process if those costs could and should have been included in the earlier claims.

The Full Court allowed the appeal, finding that the application judge erred in refusing relief. The court held that the *Anshun* estoppel principle, or abuse of process, could apply to claims made under the SoP Act. Consequently, the matter was remitted to the Supreme Court for determination of whether GE-Elecnor's second payment claim constituted an abuse of process.