Security of Payment and Adjudication: Australia

Australia runs eight separate security of payment statutes over one uniform delay doctrine. The entitlement test, the prevention principle, the penalties doctrine and the rules on concurrency and global claims do not change at a state line. Whether, and how fast, and how finally. A delay claim can be turned into cash through adjudication does. This page sets out what actually changes at the border, and the single national fact that now sits above all of it.

The headline: delay is adjudicable everywhere, and it is new

Until 15 April 2026, Victoria was the one Australian jurisdiction where a category of claim was categorically excluded from adjudication. Sections 10A–10B of the Building and Construction Industry Security of Payment Act 2002 (Vic) carved delay costs, variations, latent-condition claims and general damages out of the adjudication process altogether. The "excluded amounts" regime. No equivalent ever existed in any other Australian jurisdiction. That is worth pausing on: the excluded-amounts regime was not a conservative default that other states relaxed over time. It was a Victorian anomaly, and its repeal. Timed to the same day the state's new unfair time-bar provision, s 13A, commenced. Removes the only categorical bar to delay adjudication anywhere in the country.

As of this review, no Australian jurisdiction categorically excludes delay costs, variations, latent conditions or damages from security of payment. A contractor or subcontractor with an unpaid delay cost claim can now put it through adjudication in New South Wales, Victoria, Queensland, South Australia, Tasmania, the ACT, Western Australia and the Northern Territory alike.

Victoria's rebuild goes further than the repeal itself. New s 14A abolishes the reference-date mechanism. The payment-claim window after practical completion was extended from three months to six. Payment falls due within 10 business days, with a 20-business-day deemed maximum, and a new retention and performance security regime sits at ss 17A–17G. Victoria did not merely remove a carve-out. It rebuilt its entire security of payment Act around a delay-inclusive baseline.

Two machinery models: and a common misreading of what they decide

Australian security of payment runs on two structurally different models.

The East Coast model: running in New South Wales, Victoria, Queensland, South Australia, Tasmania, the ACT, and Western Australia since its 2022–2024 migration. Moves through a fixed sequence: payment claim, payment schedule, adjudication. Only the claimant may apply. A respondent's silence is penalised: it is confined to the reasons already given in its payment schedule, and cannot raise new ones at adjudication. The application window runs 10–20 business days depending on the jurisdiction and step.

The West Coast model now survives in one place only. The Northern Territory, under the Construction Contracts (Security of Payments) Act 2004. A broad "payment dispute" arises rather than a claim-and-schedule sequence. Either party may apply, not just the claimant. Silence carries no procedural penalty and new reasons remain open, and the application window is far longer. Up to 65 business days. The split between the two models is now 7–1.

Western Australia's migration from the West Coast to the East Coast model was staged: Stage 1 on 1 August 2022, Stage 2 on 1 February 2023, and Stage 3, completing the transition, on 1 February 2024. Western Australia also carries a feature no other Australian jurisdiction has. A statutory internal review of an adjudication determination, at ss 39 and 47 of the Building and Construction Industry (Security of Payment) Act 2021 (WA), on a timetable set out across ss 23–47.

It is tempting to assume the model decides whether a delay claim can be adjudicated. It does not. The model determines what an adjudicator is determining and how much procedural room each side has. A statutory progress payment under the East Coast model, the underlying contractual entitlement under the West Coast model. It has never determined adjudicability. That question turned on exactly one statute: Victoria's excluded-amounts regime. With that regime repealed, the model a jurisdiction runs no longer bears on whether a delay claim reaches an adjudicator at all, only on how it gets there.

No statute names extension of time: and that makes Australia the more permissive regime

Search every Australian security of payment Act and none of them mentions extension of time. Delay reaches an adjudicator not as a named head of claim but as an input into the valuation of a progress payment or, on the West Coast model, of the underlying contractual entitlement. The adjudicator is not granting time. The adjudicator is pricing a payment claim that happens to include, among its components, a sum that depends on how many days of delay the facts support.

That structural choice is the sharpest contrast with Canada's approach to the same idea. Canadian adjudication regimes that reach delay do so by naming it, and naming it in order to constrain it. Ontario allows an extension-of-time question onto the adjudication table only as an ancillary head, where reasonably necessary to determine something else, and never on P3 projects. Alberta expressly excludes delay and schedule disputes from adjudication on provincial public works. British Columbia's regime does not name extension of time as an adjudicable matter at all. Each of those regimes treats delay as something requiring a specific statutory licence before an adjudicator may touch it.

Australia never wrote that licence, and never wrote the constraint that comes with it. Because no Australian statute names extension of time, none limits it to an ancillary role, excludes it from public works, or bars it from a class of project. It simply arrives, unconstrained, as part of ordinary valuation. Australia is, on this measure, the more permissive adjudication regime in the common-law world for a delay claim. The offsetting price, set out below, is that the result of that permissive process is effectively final.

The Goyder Wind Farm litigation is the clearest illustration of how far that permissiveness runs in practice. An adjudicator awarded 118 days of extension of time, plus prolongation costs, while rejecting a "thickening" claim on the same facts. Arising from a dispute about late site access caused by environmental approval delays. Through the South Australian Supreme Court, the Court of Appeal, and a refused High Court special leave application, nobody argued that the adjudicator lacked the power to make that determination at all. The entire contest was about what the determination bound afterwards, not whether it should have been made.

The door is shut: judicial review of a delay finding

Delay claims became adjudicable everywhere on 15 April 2026, on a business-day timetable, with the result unreviewable, and unreviewable precisely because the timetable is short.

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4, decided by a seven-member High Court bench on 14 February 2018, held that no certiorari lies for non-jurisdictional error of law in a security of payment adjudication under the New South Wales Act. The Court's reasoning turned on the character of the regime itself: the Act runs on very short timeframes, and it is not concerned with finally and conclusively determining the parties' entitlements. It is concerned with cash flow. Maxcon Constructions Pty Ltd v Vadasz [2018] HCA 5 applied the same principle to South Australia, confirming the position is not confined to New South Wales.

The practical consequence for a delay claim follows directly. Evaluating whether a delay occurred, what caused it, whether it was concurrent, and how many days it is worth is quintessentially a question of fact and law within an adjudicator's jurisdiction to get wrong, which means it is quintessentially non-jurisdictional error, and quintessentially unreviewable. An adjudicator's finding on a delay claim is, for all practical purposes, the end of the road on the merits. There is no second-guessing a bad delay analysis, a rejected concurrency argument, or an unfavourable read of the programme once the adjudicator has decided it. Not through judicial review, and not on the ground that the adjudicator simply got the delay wrong.

One reported departure exists and should be treated with caution rather than relied on. Radman Pty Ltd v Open Plan [2020] VSC 318 is reported as permitting review of a Victorian adjudication determination for "material error of law on the face". A materially wider review ground than Probuild allows elsewhere. This proposition is UNVERIFIED and single-sourced. It is flagged here as the single highest priority item to independently verify before assuming Victoria sits outside the Probuild position. No decision under the name "Grocon" addresses judicial review of a delay finding. The Grocon decision that circulates in practice is an excluded-amounts decision, and would in any event be largely spent now that the excluded-amounts regime is repealed.

The practical consequence is the point to carry into every Australian adjudication involving delay: get it right the first time. There is no meaningful appellate safety net waiting on the other side of an adverse determination.

Nothing binds afterwards: but re-running a losing head is risky

An adjudication determination's finality cuts only one way. It cannot be reviewed for a non-jurisdictional error, but it also does not bind later proceedings on the underlying merits. Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd [2022] ACTCA 42 and the Court of Appeal decision in the Goyder litigation both reject issue estoppel and Anshun estoppel as a bar to re-litigating an adjudicated delay claim, leaving only the residual doctrine of abuse of process. Statutory same-value provisions of the kind found across the East Coast statutes bind the valuation an adjudicator reaches, not the underlying entitlement. So an adjudicated extension of time does not bind a subsequent adjudicator or a later arbitrator considering the same facts.

The workaround that has emerged is tranching: adjudicate the claim, then pursue non-overlapping heads separately, in arbitration, without re-running the ones already lost. What draws an abuse-of-process finding is not adjudicating fresh heads in sequence. It is re-running a losing head against the same facts. Read against the short, cash-flow-focused character of the regime that Probuild describes, tranching looks like the sensible response the timetable forces rather than an evasion of it, and it has now been endorsed at appellate level.

Unfair time bars: a power only two jurisdictions have

Most Australian jurisdictions give a party no statutory tool to attack an unfair contractual notice or time-bar clause. Only two do:

Every other jurisdiction. New South Wales, Queensland, South Australia, Tasmania, the ACT and the Northern Territory. Has no equivalent power. Queensland is worth stating plainly rather than leaving as an assumption: confirmed on two independent national surveys, there is no power under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) to declare a time bar unfair. That negative is settled, not a gap in the research.

New South Wales sits in between. It has no dedicated unfair-time-bar power, and the only lever available is s 34 of the SOP Act 1999 (NSW), the general anti-contracting-out provision. That lever is weaker than it was thought to be. In Sharvain Facades Pty Ltd (Administrators Appointed) v Roberts Co (NSW) Pty Ltd [2025] NSWSC 606, Stevenson J held a contractual notice-deeming clause void under s 34. On appeal, in Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd [2025] NSWCA 161, the Court of Appeal upheld the same outcome, but on a different and narrower footing: s 14(4) permits a payment-schedule period to be contractually shortened but not lengthened. The Court of Appeal expressly declined to decide the s 34 point. The practical consequence is that a claim that "s 34 voids notice-deeming clauses in New South Wales" overstates what the Court of Appeal actually held. The safer proposition to lead with is s 14(4), and the s 34 question should be treated as open rather than settled, notwithstanding at least one market commentary that reports the Court of Appeal as having decided it.

Security of payment by jurisdiction

The 2024–2026 sweep, and what it does not show

New South Wales, South Australia, Tasmania, the ACT and the Northern Territory made no security of payment amendments across the 2024–2026 window. Queensland's activity was the Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2024 plus a paused trust expansion: a proclamation of 31 January 2025 was to lift the trust thresholds to A$3 million (government, from March 2025) and A$1 million (private, from October 2025), but neither phase ever commenced. The thresholds remain A$1 million government and A$10 million private, and the expansion sits behind a Queensland Productivity Commission review. Western Australia's activity was the completion of its East Coast migration on 1 February 2024.

It is tempting to read this activity as part of a national push toward statutory construction trusts. That overstates the position. Only two Australian jurisdictions run trusts, Queensland's own trust expansion is paused rather than advancing, and Victoria. The jurisdiction that rebuilt its entire security of payment Act in 2025–26. Did not adopt one. The national Murray Review's key delay-relevant recommendation, ending Victoria's excluded-amounts carve-out, was implemented nine years after the review, by Victoria alone, with no Commonwealth statute and no harmonisation across the other seven jurisdictions.

What this means for how a delay claim is run

The Australian security of payment landscape has converged on a single national answer to the adjudicability question while remaining sharply divided on everything around it. Every jurisdiction will now let an adjudicator value a delay claim. Whether the respondent's silence is penalised, how long a party has to apply, whether either party or only the claimant may apply, whether an unfair notice clause can be attacked directly, and whether an adverse determination can be internally reviewed all still depend on which of the eight statutes governs the contract.

What does not vary is the consequence of losing on the delay finding itself. Because judicial review is confined to jurisdictional error, and delay evaluation does not produce jurisdictional error, the adjudication is, in substance, the only chance to get the delay finding right on the merits. Later arbitration is available on the underlying entitlement. The adjudication does not estop it, but re-running a head that has already been lost invites an abuse-of-process finding, and non-overlapping tranching is the only workaround the appellate courts have blessed. The record built for the adjudication, not any later proceeding, is where an Australian delay claim is actually won or lost.

About this material Library content is general information about construction claim practice, not legal advice. Entitlement, deadlines and procedure are governed by your own contract and by the law of the place the work is performed. Reviewed September 1, 2026 · Report a correction