SE Ware Street Dev Pty Ltd v Kwik Flo Pty Ltd (No 2) - [2025] NSWSC 1299

Supreme Court

New South Wales

Medium Neutral Citation: SE Ware Street Dev Pty Ltd v Kwik Flo Pty Ltd (No 2) [2025] NSWSC 1299
Hearing dates: On the papers
Date of orders: 5 November 2025
Decision date: 05 November 2025
Jurisdiction: Equity - Technology and Construction List
Before: Peden J
Decision:
At [22]

Catchwords:
COSTS – where plaintiff successful – where plaintiff made a Calderbank offer to settle proceedings including other claims – where plaintiff contends defendant’s conduct was an abuse of process – where plaintiff raised a late argument on which it was ultimately successful – no basis for indemnity costs – no basis for plaintiff to pay portion of defendant’s costs – costs ordered on the ordinary basis
PAYMENT OF MONEY OUT OF COURT – where plaintiff paid money into Court as ‘price of injunction’ – where plaintiff has been successful – where defendant resists payment out of Court while it appeals – no basis for money to remain in Court
INJUNCTION – no issue of principle – defendant to be restrained from enforcing SOPA determination

Legislation Cited:
Building and Construction Industry Security of Payments Act 1999 (NSW)
Civil Procedure Act 2005 (NSW) s 98
Evidence Act 1995 (NSW) s 131(2)(h)
Uniform Civil Procedure Rules 2006 (NSW)

Cases Cited:
Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359
Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137 at [154]
Narayan v Narayan [2022] NSWSC 1685
Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWCA 172
SE Ware Street Dev Pty Ltd v Kwik Flo Pty Ltd [2025] NSWSC 1060
Steven Faraday v Thomas Gabor Rappaport [2007] NSWSC 253
Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111

Category: Costs
Parties: SE Ware Street Dev Pty Ltd (Plaintiff)
Kwik Flo Pty Ltd (First Defendant)
Edward Smithies (Second Defendant)
Representation:
Counsel:
D Hughes with S Puttick (Plaintiff)
D Jury (solicitor) (First Defendant)
Solicitors:
Mills Oakley Lawyers (Plaintiff)
HWL Ebsworth Lawyers (First Defendant)

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

JUDGMENT

On 19 September 2025, I delivered judgment in this matter, finding that SE Ware was entitled to injunctive relief restraining Kwik Flo from taking steps to register or enforce a judgment based on a second determination of adjudication application under the Building and Construction Industry Security of Payments Act 1999 (NSW) (SOPA): SE Ware Street Dev Pty Ltd v Kwik Flo Pty Ltd [2025] NSWSC 1060 (Judgment).
The parties were ordered to confer on final orders giving effect to the judgment and provide submissions and evidence if there was a disagreement.
There is no dispute that SE Ware is entitled to an injunction in the form it proposes. The only issues in dispute are the appropriate costs order, and whether SE Ware’s funds paid into Court ought be released to it in circumstances where Kwik Flo’s appeal will be heard shortly.

Costs

SE Ware seeks an order for indemnity costs because it submits:

Any attempt by…

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 1299
Decision Date: 05 November 2025

CaseChat Overview and Summary

In the case of SE Ware Street Development Pty Ltd v Kwik Flo Pty Ltd (No 2), the plaintiff, SE Ware Street Development, sought relief from the Supreme Court of New South Wales against the defendant, Kwik Flo Pty Ltd, concerning the enforcement of a determination made under the Shop and Office Premises Act 1990 (NSW). The plaintiff sought to prevent the defendant from enforcing the SOPA determination and argued that the defendant's conduct was an abuse of process. Additionally, the plaintiff sought an order for the defendant to pay costs on an indemnity basis, arguing that the defendant's conduct warranted such an order.

The primary legal issues revolved around the assessment of costs and the proper allocation of those costs between the parties. The court needed to determine whether the plaintiff's conduct warranted indemnity costs, and if so, whether the plaintiff should be ordered to pay a portion of the defendant's costs. Another issue was whether the money paid into court as the "price of the injunction" should remain there while the defendant appeals, or if it should be released to the plaintiff.

The court found that the plaintiff's conduct, including the making of a Calderbank offer and the late raising of the argument regarding the defendant's abuse of process, did not warrant indemnity costs. It was held that the plaintiff had been successful in their claims, and there was no basis for ordering the plaintiff to pay a portion of the defendant's costs. Consequently, the costs were ordered on the ordinary basis. Regarding the payment of money out of court, the court ruled that the plaintiff, having been successful, should receive the money paid into court, and it should not remain there while the defendant appeals. Finally, the court issued an injunction restraining the defendant from enforcing the SOPA determination.

Orders