Background
TQM obtained an adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) concerning amounts allegedly owing under a 2020 construction contract for terraces owned by East End. On 3 August 2026, judgment was entered for TQM for $6,376,275.23.
East End accepted that the judgment was enforceable, but sought to pay it in monthly instalments of $354,237.51 over about 18 months. It also sought financial records from TQM and a related third party, contending the documents would support its separate contractual proceedings under s 32 of the Act, in which it alleged TQM had already received the relevant amount through other payment arrangements.
The Court’s Holding
Schmidt AJ dismissed East End’s motions. The Court held that the subpoenaed and noticed documents were not relevant to the only issue in the proceeding: whether East End had established a proper basis for an instalment order. East End’s allegations about prior payments and its prospects in the separate s 32 proceedings could not be determined in the enforcement proceeding.
The Security of Payment Act preserves contractual claims and potential restitution, but it does not displace an adjudication-based judgment while that judgment remains in force. East End had not obtained a stay of the judgment and remained bound by it. It also failed to provide sufficiently reliable evidence of its financial circumstances or its ability to make the proposed instalments. Its disclosed assets were more than sufficient to pay the debt, while its claimed cash constraints and anticipated recoveries from associates were inadequately explained.
Key Takeaways
- A party seeking an instalment order bears the onus of establishing a just basis for departing from ordinary judgment enforcement.
- Separate contractual proceedings under s 32 do not make evidence about the merits of that dispute relevant to an instalment application for an existing SOP Act judgment.
- The SOP Act’s interim cash-flow regime leaves contractual rights intact, but the adjudication judgment remains enforceable unless set aside or stayed.
Why It Matters
The decision reinforces the strong enforcement effect of judgments entered from Security of Payment adjudications. A developer cannot use a later contractual dispute, including a claim for restitution, to defer payment unless it can obtain appropriate relief and establish a sound evidentiary basis for it.
It also illustrates that a judgment debtor seeking instalments must provide clear, reliable evidence of its financial position and payment capacity—not merely assertions of liquidity constraints or disputed claims in other proceedings.