Can You Start a Second SOPA Adjudication After an Unfavourable Decision?

A SOPA adjudication is designed to provide a quick and efficient way to resolve construction payment disputes in New South Wales. But what happens when an adjudicator decides they do not have jurisdiction? Can the claimant withdraw the application and simply start another SOPA adjudication before a different adjudicator?

The NSW Supreme Court considered this issue in SE Ware Street Dev Pty Ltd v Kwik Flo Pty Ltd [2025] NSWSC 1060. The decision demonstrates that an unfavourable jurisdictional determination cannot simply be avoided by commencing the same adjudication again in the hope of obtaining a different result.

The dispute

SE Ware Street Dev Pty Ltd and Kwik Flo Pty Ltd entered into an oral arrangement to jointly develop land in Fairfield, New South Wales. The parties later disagreed about the terms of that arrangement.

Kwik Flo served a payment claim seeking approximately $3 million for construction work and alleged lost profits before commencing adjudication under SOPA. The first adjudicator concluded that the agreement fell within the exception in section 7(2)(c) of SOPA because the consideration payable was not calculated by reference to the value of the construction work. As a result, the adjudicator determined that they lacked jurisdiction to decide the claim.

Rather than challenging that outcome through the courts, Kwik Flo purported to withdraw the adjudication application and lodged a second application with a different authorised nominating authority. The second adjudicator reached a different conclusion on jurisdiction and awarded Kwik Flo approximately $1.2 million.

SE Ware then commenced proceedings seeking to prevent Kwik Flo from enforcing the second decision.

What did the Court decide?

The central issue was whether the first adjudicator’s conclusion that they lacked jurisdiction was considered a “determination” under SOPA.

The Court found that although the first adjudicator did not determine the amount payable under the payment claim, they had considered the parties’ submissions and reached a final conclusion that the Act did not apply because the relevant agreement fell outside the statutory definition of a construction contract. That conclusion itself constituted a determination under section 22 of SOPA.

Consequently, Kwik Flo was not entitled to withdraw the application and recommence the adjudication process before another adjudicator because a valid determination had already been made.

The Court also found that the second adjudication attempted to re-examine the same substantial issues already decided in the previous adjudication. Allowing parties to repeatedly try to start new adjudications after receiving unfavourable decisions would undermine the purpose of SOPA. Therefore, the Court granted an injunction preventing Kwik Flo from registering or enforcing the second adjudication determination.

Why this decision matters

The decision has significant practical implications for builders, subcontractors and principals involved in payment disputes.

A jurisdictional decision is still a determination

Many parties assume that if an adjudicator decides they lack jurisdiction, the adjudication has effectively failed and the process can simply begin again. However, the Court made it clear that this is not necessarily the case. A determination that the adjudicator lacks jurisdiction is still a valid determination under SOPA.

You cannot simply shop for another adjudicator

A party cannot avoid an unfavourable determination by withdrawing an application after a decision has already been made and lodging the same dispute with a different adjudicator.

Attempting to do so may expose the claimant to court proceedings and injunctive relief preventing enforcement of any subsequent determination.

Jurisdictional objections should be raised early

The case also highlights the importance of responding properly to payment claims and adjudication applications.

Where a respondent believes SOPA does not apply, those jurisdictional objections should be clearly raised during the adjudication process. In SE Ware, those objections ultimately proved decisive.

Practical lessons for construction businesses

The decision provides several practical reminders for participants in the construction industry.

• Carefully assess whether the contract falls within the scope of SOPA before commencing adjudication.
• If jurisdiction is genuinely in dispute, obtain legal advice before assuming a fresh adjudication is available.
• Respondents should clearly articulate jurisdictional objections during the adjudication process rather than waiting until enforcement proceedings.
• Remember that attempting to relitigate issues already determined may result in the courts restraining enforcement on the basis of abuse of process.

The broader significance

Although the decision arose from an unusual factual scenario, it reinforces an important principle underpinning SOPA.

The legislation is intended to provide a quick and efficient mechanism for resolving payment disputes, not multiple opportunities to seek a more favourable outcome. Once an adjudicator has validly determined a jurisdictional issue, parties cannot ordinarily circumvent that decision by commencing a second adjudication over the same dispute. That approach was subsequently upheld by the New South Wales Court of Appeal, reinforcing the policy against repetitive adjudications.

For builders, developers and subcontractors, the decision is a reminder that jurisdictional issues should be carefully considered before commencing adjudication, as an unsuccessful application may not simply be restarted.

Need expert legal advice? Feel free to contact Damin Murdock at Leo Lawyers via our website, on (02) 8201 0051 or at office@leolawyers.com.au. Further, if you liked this article, please subscribe to our newsletter via our Website, and subscribe to our YouTube, LinkedIn, Facebook and Instagram. If you liked this article or video, please also give us a favourable Google Review.

DISCLAIMER: This is not legal advice and is general information only. You should not rely upon the information contained in this article, and if you require specific legal advice, please contact us.