Nova Builders Pty Ltd v Civil & Civic Corporation Pty Ltd

Nova Builders Pty Ltd and Civil & Civic Corporation Pty Ltd were parties to a dispute concerning a progress payment claim under the Building and Construction Industry (Security of Payment) Act 2009 (ACT). The case was before the Supreme Court of the Australian Capital Territory, which was required to decide several legal issues. These included whether the statutory cause of action had merged by virtue of court orders in other proceedings, whether payment of the claimed sum into court sufficed to constitute payment under the statute, whether the payment claim had the same reference date as an earlier claim, and whether there was a failure to provide reasons. Additionally, the court had to determine whether the adjudication application and the adjudication itself constituted an abuse of process given that money had been paid into court.

The court examined the adjudicator's decision, which concluded that the payment claim in question was not the same as that claimed in other proceedings. The adjudicator found that the claim related to work performed after a critical date, despite earlier indications that it included work performed before that date. Nova Builders argued that the payment of the disputed sum into court in another proceeding had resulted in a merger by judgment, citing J Hutchinson Pty Ltd v Galform Pty Ltd and Blair v Curran. The court needed to assess whether this payment effectively discharged any liability Nova Builders had towards Civil & Civic, as argued by Nova Builders. Furthermore, the court considered the contention that the adjudication process was an abuse of process given the prior payment into court.

In its decision, the court granted leave to appeal the orders made on 31 August 2021, allowed the appeal, set aside the orders, and remitted the matter to the adjudicator for further determination. The court also ordered that Civil & Civic pay Nova Builders' costs of the appeal. The court dismissed an application, ordering that the first defendant pay the plaintiff's costs. In both cases, the court stayed certain orders if either party sought to vary them within a specified period.