Welcome back to Construction Insights, your fortnightly resource for staying informed on the evolving landscape of construction law and industry developments. In this edition, Qube’s High Court bid fails, Lipman’s clawback claims get crushed, Broadbeach cops indemnity costs and the Australian Constructor’s Association proposes economic reform.
Case Update: High Court shuts door on broadening jurisdiction error under SOPA
Special leave refused in Qube RE Services (No 2) Pty Ltd v Martinus Rail Pty Ltd [2025] HCADisp 172
The High Court has refused special leave to appeal part of the Court of Appeal’s decision in Qube RE Services (No 2) Pty Ltd v Martinus Rail Pty Ltd [2025] HCADisp 172, cementing key principles regarding adjudicator conduct and jurisdictional error under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA).
Background
This dispute arose from two subcontracts for the Moorebank Intermodal Terminal Project – the Interstate Terminal Works Contract (INTS) and the Interstate Rail Access Works Contract (ISRA).
Delays in the project led to disagreements, and ultimately, Martinus submitted payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA), claiming $104.1M under the INTS Subcontract and $33.3M under the ISRA Subcontract. CDI represented Martinus in the adjudications securing some of the largest wins in NSW in recent years.
At first instance, the Supreme Court of NSW (Parker J) partially set aside the adjudications on grounds of jurisdictional error. The Court of Appeal reinstated the full determinations, rejecting the argument that an adjudicator’s failure to address submissions or claims in their reasons automatically constituted jurisdictional error. Qube sought special leave to appeal that finding in the High Court.
High Court decision
The High Court refused special leave on 7 August 2025.
This leaves the Court of Appeal’s judgement standing.
Key takeaways
What can be taken away from this decision?
- Jurisdictional error is narrowly drawn: The Court of Appeal confirmed that misunderstanding a submission or misapplying the law will not amount to a jurisdictional error. Failure to mention a submission in reason does not mean it was not considered.
- Procedural fairness must be substantial: A finding of jurisdictional error under SOPA requires a substantial denial of procedural fairness by the adjudicator. Minor omissions or mistakes will not suffice.
- Nature of the SOPA: SOPA is designed for informal, summary, and swift resolution of payment disputes. Courts are reluctant to find jurisdictional error, even for large claims.
- Adjudication of bank guarantees permitted: The Court rejected Qube’s argument that claims involving bank guarantees fell outside the scope of SOPA. Qube had included the bank guarantee amount in its own adjusted contract sum, putting it squarely in dispute.
Conclusion
This decision provides further clarity for parties seeking to challenge adjudication determinations in NSW. Unless there is a clear and substantial denial of procedural fairness, the Courts will likely uphold adjudications – even for high-value and complex claims. Respondents should ensure robust payment schedules and legal submissions at the adjudication stage.
Case Update: High bar for claw back claims and jurisdictional challenges
Lipman Pty Ltd v A-Civil Aust Pty Ltd [2025] NSWSC 865
A recent NSW Supreme Court decision has reinforced the limited ground for setting aside adjudication determinations under SOPA.
Background
Lipman engaged A-Civil under a minor works subcontract for demolition works on the Eugowra Emergency Housing Project. A-Civil submitted a $13 million payment claim, which included:
- $8 million for variations previously approved but unpaid; and
- $5 million for unapproved variations, $4.18 million of which related to crusher hire to process waste materials.
Lipman’s payment schedule certified nil and alleged A-Civil owed it over $9 million due to overpayments and non-compliance with variation procedures.
The adjudicator found in A-Civil’s favour, awarding approximately $6.88 million (including GST). Lipman applied for judicial review.
Key issues
Whether the adjudicator properly valued the crusher claim, claw back claim, and failed to consider submissions.
Findings
The Court ultimately dismissed Lipman’s arguments and upheld the adjudicator’s original decision.
- Crusher claim = scope work, not a variation: Although labelled an “unapproved variation” due to system constraints, the adjudicator and Court found the crusher hire works were part of the subcontracted scope. The contract required A-Civil to do all work “necessary for the proper execution” of the demolition – which included proceeding and disposing of waste materials.
- Clawback claim rejected: Lipman attempted to claw back payments made in prior claims, asserting they were incorrectly approved. The Court upheld the Adjudicator’s view: Lipman had verified the claims via signed day dockets and RCTIs and could not retrospectively reverse payment without clear evidence of mistake or overreach.
- Submissions were considered: Lipman alleged that the adjudicator failed to consider certain miscellaneous issues. These miscellaneous issues were part of Lipman’s broader claw back claim. The Court disagreed, finding that the issues were addressed through existing materials, and there was no denial of natural justice.
Takeaway
- The way a claim is presented (e.g. labelling scope work as a variation due to software limitations) doesn’t bind the adjudicator. The substance and underlying contract obligations remain key.
- Seeking to claw back previously approved and paid claims—particularly years later—requires compelling evidence and will rarely meet the SOPA threshold for reversal.
- There is a high bar to argue an adjudicator did not consider submissions – here the signed dockets were enough for the adjudicator to consider the miscellaneous issues claimed by Lipman were irrelevant.
Read the full judgement here: PDF – Lipman Pty Ltd v A-Civil Aust Pty Ltd [2025] NSWSC 8651 | NSW SUPREME COURT
Case Update: Access rights and indemnity costs
Queensland Supreme Court grants temporary licence under s 180 of the Property Law Act 1974 (Qld) – with sting in costs tail
21 Broadbeach Blvd Pty Ltd v Body Corporate for Oceana on Broadbeach [2025] QSB 186
A recent decision of the Queensland Supreme Court offers timely guidance for developers and body corporates alike, clarifying the evidentiary burden under s 180 of the PLA and confirming the risk of indemnity costs where applicants pursue access orders without adequate preparation.
Background
Broadbeach, the developer of a 22-storey residential tower (in Broadbeach) sought a court-imposed temporary access licence over 37.4m2 of the adjoining body corporate’s (Oceana) common property. The licence was required to erect scaffolding, hoarding and perform related construction works along a shared boundary.
The parties had history – an earlier injunction had restrained trespass, and a licence agreement entered in October 2024 was terminated by the body corporate in March 2025 over unauthorised conduct by the developer. Despite this, the developer filed a fresh s 180 application without supporting affidavits or detailed proposals – leading to months of dispute before the matter was heard in July 2025.
Key issues
The Court had to consider whether Broadbeach’s proposed temporary access licence met the requirements of s 180 PLA and whether Broadbeach’s conduct warranted an indemnity costs order in favour of Oceana.
The outcome: Licence granted, but indemnity costs awarded
By the hearing date, the parties had agreed to licence terms (including $20,000 in compensation and insurance/indemnity protections), and the Court made orders accordingly. But the sting came in the costs order – Smith J ordered the developer to pay the body corporate’s costs on an indemnity basis, citing blameworthy conduct.
Legal insights: s 180 remains a narrow gateway
The Court reaffirmed the four preconditions to relief under s 180 of the PLA:
- Reasonable necessity: The Court accepted that scaffolded access was essential, as cantilevered alternatives were either unsafe or cost prohibitive;
- Public interest: The development aligned with efficient urban planning objectives;
- Compensation: The agreed $20,000 was appropriate for temporary loss of amenity and supported by valuation evidence; and
- Unreasonable refusal: While Oceana’s initial refusal was reasonable (given the lack of detail), the later agreement paved the way for the order.
Nonetheless, the decision stresses that applicants must put forward a “clear and persuasive” case from the outset – generalised or premature applications will not be well received.
Indemnity costs
Despite obtaining the licence, Broadbeach’s conduct led to an indemnity costs order. Key issues included:
- Inadequate material: The application was filed without affidavits or scaffolding details. Key documents (e.g. engineering reports) were only provided months later, despite requests they be provided sooner.
- Misunderstanding of onus: Broadbeach incorrectly shifted the burden to Oceana to prove risk, rather than establishing the safety and necessity of its proposal.
- History of trespass: The Court noted prior encroachments and fresh unauthorised conduct (erecting scaffolding before orders were made).
- Failure to resolve early: The developer rejected a reasonable offer to settle on standard costs weeks before the hearing.
Takeaway
This decision is a cautionary tale for developers seeking access over neighbouring land. It confirms:
- s 180 relief remains exceptional and requires proper planning, evidence and disclosure.
- Prior conduct and interactions with the servient owner will be closely scrutinised.
- Poorly prepared applications risk significant adverse costs, even where orders are ultimately granted.
For body corporates, the decision reinforces the importance of actively protecting common property (under ss 36 and 94 of the Body Corporate and Community Management Act), and of holding firm where developers do not comply with procedural expectations.
Read the full judgement here: PDF – 21 Broadbeach Blvd Pty Ltd v Body Corporate for Oceana on Broadbeach [2025] QSC 186 | QLD SUPREME COURT
ACA supports reforms to boost construction productivity
The Australian Constructors Association (ACA) has submitted a major reform proposal to the federal government’s Economic Reform Roundtable, urging inclusion of the construction sector in national productivity discussions.
ACA contended:
- That construction has underperformed for decades and presents a $56 billion annual productivity opportunity if it reaches parity with other industries.
- Industrial relations reform is central to the proposal, with ACA CEO Jon Davies criticising site inefficiencies where only three days of productive work are achieved per week on many projects.
- The need to shift away from a lowest-cost mindset and focus on delivering greater value through efficient resource use and project execution.
- That the three initiatives announced by them at its Foundations and Frontiers forum in Brisbane 6 August could unlock $15 billion in annual savings. The initiatives included, cutting indirect costs by 10%, halving tender costs for bidders and reallocating resources to project delivery and implementing a more flexible RDO system.
ACA has considerably influence over Queensland’s construction industry, it will be important to monitor if any of ACA’s recommendations will be reflected in legislative reforms / Government initiatives.
Olympic venues locked in: $3.4 billion Commonwealth contribution, IGA signed, delivery partner sought
Federal funding deal secured for 2032 Olympic venues
The Commonwealth and Queensland Governments have formalised a landmark Intergovernmental Agreement (IGA) that will guide the delivery of 17 new or upgraded venues for the Brisbane 2032 Olympic and Paralympic Games. As part of the agreement, the Australian Government has committed $3.435 billion, covering 50% of the forecast $7.1 billion cost of the Games Venue Infrastructure Program.
This capped contribution will go towards major projects including:
- 63,000-seat main stadium at Victoria Park; and
- 25,000-seat National Aquatic Centre in Spring Hill.
The deal follows project validation assessments confirming that the venues can be delivered on time, on budget, and with long-term public benefit, forming part of a broader legacy vision for Queensland’s infrastructure landscape.
GIICA procurement and market engagement underway
The Games Independent Infrastructure Coordination Authority (GIICA) has already moved into procurement mode, launching an EOI for a Delivery Partner to help drive the successful rollout of the Games Venue Infrastructure Program.
Key procurement updates:
- Delivery Partner EOI is active – a critical step in bringing industry expertise into the delivery framework;
- Registrations of Interest (ROI) opened 1 August for design and consultation firms, targeting early involvement in venue planning.
Broader infrastructure context
The Commonwealth’s Games venue funding complements a broader infrastructure commitment across Queensland, including:
- $12.4 billion in transport infrastructure, such as:
- Bruce Highway upgrades from Brisbane to the Sunshine Coast;
- Faster rail from Brisbane to the Gold Coast;
- Stage 1 of the Direct Sunshine Coast Rail, linking Beerwah to Caloundra.
The Queensland Government’s own commitment forms part of a $116.8 billion four-year capital works pipeline, supporting statewide economic growth and delivery capability.
What this means for industry
Opportunities are open now for contractors, consultants, and delivery partners to participate in Olympic infrastructure.
Stakeholder engagement and community transparency are non-negotiable components of successful project delivery under the IGA.
The formal agreement provides the structure and funding certainty needed for major works to proceed to procurement and delivery.
This is a generational moment for Queensland’s construction industry — and a clear signal that 2032 Games infrastructure is no longer a political promise but a funded, regulated, and fast-moving pipeline of work.
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