SE Ware Street Dev Pty Ltd v Kwik Flo Pty Ltd - [2025] NSWSC 1060

Supreme Court

New South Wales

Medium Neutral Citation: SE Ware Street Dev Pty Ltd v Kwik Flo Pty Ltd [2025] NSWSC 1060
Hearing dates: 18 August 2025; further submissions 22 and 27 August 2025
Date of orders: 19 September 2025
Decision date: 19 September 2025
Jurisdiction: Equity - Technology and Construction List
Before: Peden J
Decision:
At [48]

Catchwords:
BUILDING AND CONSTRUCTION – adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) – second or subsequent adjudication – where first adjudicator determined no jurisdiction to decide first defendant’s claim – first defendant withdrew application and obtained second adjudication – whether first adjudication decision a determination under s 22(1) – whether withdrawal was valid – whether second determination an abuse of process – whether issue estoppel applies – consideration of appropriate relief

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

Cases Cited:
Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2022) 277 CLR 445
Alucity Architectural Produce Supply Pty Ltd v Australian Solutions Centre [2016] NSWSC 608
Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421
Civil & Allied Technical Construction Pty Ltd v Resolution Institute [2019] SASC 193
Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190
Forte Sydney Carlingford Development Pty Ltd v Forte Sydney Carlingford Pty Ltd [2024] FCAFC 9
Forte Sydney Carlingford Pty Ltd v Li [2022] FCA 1499
Goyder Wind Farm 1 Pty Ltd v GE Renewable Energy Australia Pty Ltd [2025] SASCA 39
Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245
Ku-Ring-Gai Council v Ichor Constructions Pty Ltd [2014] NSWSC 1534
Olympia Group (NSW) Pty Ltd v Hansen Yuncken Pty Ltd [2011] NSWSC 165 [2011] NSWSC 165
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1
Tackelly No 8 Pty Ltd as trustee for Tackelly No 8 Trust v Reward Interiors Pty Ltd t/as Reward Group [2025] NSWSC 300
The University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635
Urban Traders v Paul Michael [2009] NSWSC 1072

Category: Principal judgment
Parties: SE Ware Street Dev Pty Ltd (Plaintiff)
Kwik Flo Pty Ltd (First Defendant)
Edward Smithies (Second Defendant)
Representation:
Counsel:
D Hughes (Plaintiff)
G Sirtes SC with E Ball (First Defendant)
Solicitors:
Mills Oakley Lawyers (Plaintiff)
HWL Ebsworth Lawyers (First Defendant)

File Number(s): 2025/274059
Publication restriction: Nil

JUDGMENT

This is a dispute about adjudications under the Building and Construction Industry Security of Payment Act1999 (NSW) (SOPA).
In about March 2022, the directors of SE Ware Street Dev Pty Ltd and Kwik Flo Pty Ltd discussed a joint development of SE Ware’s land in Fairfield, New South Wales. They now differ on what was agreed.
Kwik Flo alleged that the agreement was for the construction of a mixed-use development it would finance, including 54 residential lots, ground floor retail lots, first floor offices and associated ground floor parking. Its alleged further terms of the agreement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 1060
Decision Date: 19 September 2025

CaseChat Overview and Summary

The case between SE Ware Street Development Pty Ltd and Kwik Flo Pty Ltd concerns a dispute under the Building and Construction Industry Security of Payment Act 1999 (NSW). The primary issue revolves around the validity and implications of a second adjudication process initiated by Kwik Flo after the first adjudicator found they had no jurisdiction over Kwik Flo's claim. Kwik Flo subsequently withdrew their initial application and pursued a second adjudication, leading SE Ware to challenge the validity and appropriateness of this second action. The case was heard in the Supreme Court of New South Wales.

The central legal questions addressed by the court were whether the initial adjudicator's decision constituted a determination under section 22(1) of the Act, the validity of Kwik Flo's withdrawal of their application, and whether the second adjudication amounted to an abuse of process. Furthermore, the court examined whether an issue estoppel could be applied to prevent SE Ware from contesting the second adjudication on the grounds that Kwik Flo had previously raised similar claims. These issues necessitated a careful interpretation of the statutory provisions and the principles of procedural fairness and estoppel.

The court found that the first adjudicator's decision, although it found no jurisdiction over the claim, did not amount to a determination under section 22(1) of the Act. Consequently, the withdrawal of the application by Kwik Flo was considered valid. The court also ruled that the second adjudication was not an abuse of process and that Kwik Flo was not estopped from pursuing their claim a second time, as the issues were not identical. The court ultimately concluded that the second adjudication was permissible under the Act and granted relief accordingly.

The final orders of the court included a declaration that the first adjudicator's decision did not constitute a determination under section 22(1) of the Act, that Kwik Flo's withdrawal of their application was valid, and that the second adjudication was not an abuse of process. The court also ruled that issue estoppel did not apply in this instance, allowing the second adjudication to proceed. This decision ensures that parties in similar disputes can understand the parameters of subsequent adjudications under the Act.

Orders