Last Updated on 29/10/2025 by Damin Murdock

Introduction

The Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) provides a fast-track mechanism for contractors and subcontractors to secure progress payments for construction work. Adjudication under the Act is intended to be quick and efficient, with limited scope for judicial intervention. The case of Futurepower Developments Pty Ltd v TJ & RF Fordham Pty Ltd [2017] NSWSC 232 highlights the principles governing when a court may set aside an adjudicator’s determination and, importantly, when it will not.

Background

Futurepower Developments Pty Ltd (Futurepower), the developer, engaged TJ & RF Fordham Pty Ltd (Fordham), the builder, for construction works. A dispute arose when Fordham submitted a payment claim under the Act that included amounts for asbestos remediation. Futurepower disputed the claim and sought to challenge the adjudicator’s determination in favour of Fordham. The challenge centred on whether the adjudicator had failed to give adequate reasons or had denied Futurepower procedural fairness.

Key Issues Before the Court

The Supreme Court (Ball J) was asked to consider:

  1. Whether the adjudicator’s reasoning was inadequate, as Futurepower argued that the determination did not properly deal with its submissions regarding asbestos-contaminated material and whether the remediation work was carried out in accordance with the contract.
  2. Whether procedural fairness was breached, as Futurepower contended that the adjudicator failed to consider important parts of its adjudication response.
  3. Whether any jurisdictional error was made, which is a necessary condition for setting aside an adjudicator’s determination under the Act.

Findings

Justice Ball rejected Futurepower’s arguments and upheld the adjudicator’s determination. The Court’s reasoning can be summarised as follows:

  • The adjudicator’s decision contained sufficient explanation, particularly on the asbestos remediation issue. While the reasoning was concise, it addressed the matters necessary to reach a conclusion.
  • The Court observed that Futurepower’s adjudication response was “lengthy, rambling and difficult-to-follow.” Given the lack of clarity, the adjudicator was not obliged to address every submission in detail. The Court emphasised that adjudicators are not required to engage in exhaustive analysis of unclear or unfocused arguments.
  • Importantly, there was no failure to consider a mandatory matter under the Act, nor was there a denial of procedural fairness. Without such an error, the Court had no basis to set aside the determination.

Principle Confirmed

This decision reinforces a central principle of the Security of Payment regime:

  • A determination will only be set aside if there is a jurisdictional error, such as a failure to consider a mandatory issue or a denial of natural justice.
  • Courts will not intervene merely because a party disagrees with the adjudicator’s reasoning, or because the adjudicator does not explicitly address every submission.
  • The adequacy of reasons is assessed in context. Where submissions are unclear, lengthy, or confusing, the adjudicator is entitled to provide focused reasoning without engaging with every argument in detail.

Practical Implications

For developers, builders, and subcontractors, this case carries several practical lessons:

    • Parties making submissions in adjudication should ensure their arguments are clear, structured, and relevant. A failure to do so may limit the adjudicator’s obligation to respond in detail.
    • Courts are reluctant to disturb adjudication determinations, and unless there is a clear jurisdictional error, determinations will stand even where parties feel the adjudicator’s reasoning is brief or unconvincing.
  • The Act is designed to ensure cash flow in the construction industry. 

Conclusion

Futurepower v Fordham serves as a timely reminder that adjudicators’ determinations under the Act are resilient to challenge. Unless a party can establish a true jurisdictional error or denial of procedural fairness, the courts will not intervene. For those engaged in the building and construction sector, the message is clear: prepare concise, coherent submissions, and be prepared to accept the adjudicator’s determination, even if it is not as detailed as one might expect in conventional litigation.

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.

 

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Damin Murdock (J.D | LL.M | BACS - Finance) is a seasoned commercial lawyer with over 17 years of experience, recognised as a trusted legal advisor and courtroom advocate who has built a formidable reputation for delivering strategic legal solutions across corporate, commercial, construction, and technology law. He has held senior leadership positions, including director of a national Australian law firm, principal lawyer of MurdockCheng Legal Practice, and Chief Legal Officer of Lawpath, Australia's largest legal technology platform. Throughout his career, Damin has personally advised more than 2,000 startups and SMEs, earning over 300 five-star reviews from satisfied clients who value his clear communication, commercial pragmatism, and in-depth legal knowledge. As an established legal thought leader, he has hosted over 100 webinars and legal videos that have attracted tens of thousands of views, reinforcing his trusted authority in both legal and business communities."