Can You Withdraw a BESS Adjudication in NSW to Wait for DNSP Sign-Off?
- John Merlo
- Apr 13
- 20 min read
Updated: May 8
Key Takeaways
Submitting an adjudication application before the DNSP approves the grid connection may result in the adjudicator determining they lack jurisdiction to hear the claim.
Under the Building and Construction Industry Security of Payment Act 1999 (NSW), a claimant may generally withdraw an adjudication application before determination, but strategic timing is critical to limit exposure to respondent objections.
An adjudicator’s finding of "no jurisdiction" is likely to be treated as a binding determination, which can legally block a second application on the same payment claim under the doctrine of abuse of process.
Not all contractual preconditions to a payment claim are enforceable — section 34 of the Act renders void any provision that excludes, modifies, or restricts the operation of the Act, and a DNSP sign-off clause may be vulnerable to challenge on that basis depending on how it is drafted.
Your commercial battery energy storage system is physically installed, successfully commissioned, and ready to export, but the final network connection agreement is still sitting in a queue at the Distribution Network Service Provider (DNSP). Frustrated by the delay and carrying the cost of the equipment, you submitted your practical completion payment claim and quickly followed it up with an adjudication application to force the head contractor to pay.
Now, looking closer at the contract conditions, you realise the practical completion milestone explicitly requires DNSP sign-off before the milestone can be claimed. Before you panic, you need to understand that not every contractual precondition of this kind is enforceable — section 34 of the Act renders void any contractual provision that excludes, modifies, or restricts the operation of the Act, and depending on how the DNSP sign-off clause is drafted, it may fall into that category. But if the clause is properly characterised as a definition of the milestone event itself — rather than a precondition to claiming — and the adjudicator rules your claim invalid because your entitlement to the practical completion milestone has not yet arisen, you are not just losing this month's round — you face the very real risk of being legally blocked from adjudicating that milestone again.
You need to know exactly how to pull the application before a binding decision is published, without setting off a chain of events that leads to an abuse of process dismissal down the line.
Evaluating the Premature BESS Claim: Withdraw or Risk Dismissal?
You are likely feeling the intense pressure of a ticking clock. The adjudicator already has your application, and every day that passes brings you closer to a potentially fatal jurisdictional ruling. This section delivers the immediate procedural steps required to assess whether your claim lacks a valid reference date and how to execute a statutory withdrawal before the adjudicator delivers a binding decision against your business.
The DNSP Connection Delay and the Premature Reference Date
Commercial BESS contracts frequently tie the final "practical completion" milestone to formal grid connection sign-off from operators like Ausgrid, which manages the network across Sydney, the Central Coast, and the Hunter region. If you lodge an adjudication application before this formal network approval is genuinely achieved, your payment claim is likely premature. The primary NSW legislation governing these payment disputes is the Building and Construction Industry Security of Payment Act 1999 (NSW).
For construction contracts entered into on or after 21 October 2019 — which will capture virtually all commercial BESS projects — the concept of a "reference date" no longer exists in the Act. That concept was removed by the 2019 amendments. Instead, a claimant's entitlement to serve a payment claim arises on and from the last day of the relevant named month.
Before assuming that the DNSP sign-off requirement renders your claim premature, you must consider section 34 of the Act. Section 34(1) provides that the provisions of the Act have effect despite any provision to the contrary in any contract. Section 34(2) renders void any provision of any agreement that purports to exclude, modify, or restrict the operation of the Act, or that may reasonably be construed as an attempt to deter a person from taking action under the Act. The courts have consistently applied section 34 to strike down contractual preconditions that operate as substantive barriers to the statutory right to claim a progress payment.
In J Hutchinson Pty Ltd v Glavcom Pty Ltd [2016] NSWSC 126, the court held void a clause requiring a subcontractor to provide a statutory declaration that its employees, subcontractors, and suppliers had been paid as a precondition to making a progress claim, on the basis that it impermissibly imposed conditions on the claimant's entitlement.
In Castle Constructions Pty Ltd v Ghossayn Group Pty Ltd [2017] NSWSC 1317, the court held void a clause requiring engineer and surveyor sign-off on completion of works before a final payment could be claimed, finding that it did more than fix a timing mechanism — it imposed a condition contingent on a third party forming an opinion that did not facilitate the claimant's statutory entitlement.
A DNSP sign-off clause that operates in the same way — making the claimant's right to payment contingent on a third party (the network operator) taking an action entirely outside the claimant's control, on a timeline the claimant cannot influence — is arguably vulnerable to being voided under section 34 on the same principles. The court in Castle Constructions held that a provision will be invalidated under section 34 if it imposes conditions on the entitlement to a progress payment, inordinately delays or effectively prevents the entitlement from arising, imposes onerous conditions that make the entitlement more of a theoretical possibility than an actuality, or does not facilitate the statutory entitlement to a progress payment. A DNSP approval requirement, particularly where network connection queues are subject to delays of months, could engage several of those limbs.
However, the position is not absolute, and this is where the analysis becomes fact-specific. There is an important distinction between a contractual precondition that restricts the right to claim a progress payment (likely void under section 34) and a contractual definition of the milestone event itself that determines what work has actually been completed (potentially enforceable). If the contract defines "practical completion" as the state of affairs in which the BESS is installed, commissioned, and formally connected to the grid — such that DNSP sign-off is not a precondition to claiming but rather an element of the milestone's definition — a respondent may argue that the milestone simply has not occurred yet, and there is nothing to claim.
On that construction, the clause is not restricting the right to make a payment claim; it is defining the scope of the work that must be performed before the entitlement arises. That distinction has not been definitively resolved in the BESS or DNSP context, and the outcome will depend heavily on the precise drafting of the relevant clause.
The consequence of this uncertainty is critical to the rest of this article. If the DNSP sign-off clause is void under section 34, then the payment claim may not be premature at all, the adjudicator may have jurisdiction, and the chain of consequences described below — jurisdictional dismissal, abuse of process, permanent blocking — does not arise. If, on the other hand, the clause is properly characterised as a milestone definition rather than a precondition to claiming, and it survives section 34 scrutiny, then the claim is premature, and the risks described below apply in full. Any integrator in this position must obtain advice on this threshold question before deciding whether to withdraw, because the answer determines whether withdrawal is necessary at all.
Stop risking your payment claim on untested contract definitions. Instruct our team to conduct a rapid section 34 review of your BESS contract and secure your commercial position before the adjudicator rules.
Why "No Jurisdiction" Rulings Block Future Applications
Expert insight: Integrators often fall into the tactical trap of assuming they can simply fix the milestone defect once network approval arrives and re-lodge the application. As the following section explains, that assumption is dangerous — a jurisdictional dismissal is not a neutral outcome, and it can permanently block the integrator from adjudicating that milestone again.
When an adjudicator dismisses a claim because they lack jurisdiction — for instance, because the BESS practical completion milestone was claimed before DNSP sign-off was formally achieved — that written dismissal is almost certainly going to be treated as a valid determination under the Act, not a non-event that leaves the slate clean. The distinction matters enormously in practice, and it is the single most common misunderstanding that lands integrators in an unrecoverable position. A "failure to determine" under the legislation refers to the adjudicator doing nothing — sitting on the application and letting the clock run out.
That said, the NSW Court of Appeal in Kwik Flo made clear that this outcome is conditional on the first adjudicator having observed all required procedural steps — including allowing the respondent time to file an adjudication response — before issuing the jurisdictional ruling. Where an adjudicator purports to rule on jurisdiction prematurely, before those procedural steps are completed, the ruling may not constitute a valid determination under the Act. That distinction, established in Olympia Group (NSW) Pty Ltd v Hansen Yuncken Pty Ltd [2011] NSWSC 165, is worth understanding: it is not every written jurisdictional ruling that triggers the Kwik Flo outcome, only those that follow a procedurally complete process.
The tactical trap plays out like this: the integrator receives the dismissal, reads it, and thinks the position is neutral — that the DNSP approval was just a timing issue, and the moment the connection agreement lands, the adjudication can simply be re-run. In practice, that assumption ignores the fact that the head contractor now holds a document from an adjudicator saying the milestone was not claimable. The head contractor's lawyers will use that determination defensively in any subsequent proceedings, arguing that the same dispute has already been subject to a binding adjudicative outcome. The integrator then faces the burden of either persuading a second adjudicator to disregard the earlier ruling — which most will be reluctant to do — or embarking on Supreme Court proceedings to have the original determination quashed before the legitimate claim can proceed. By the time that pathway is navigated, the cash flow damage can exceed the value of the milestone itself.
Executing a Section 17A Withdrawal Before Determination
A claimant has the right to withdraw an adjudication application by written notice at any point before the adjudicator issues a determination. Section 17A(1) of the Act establishes that a claimant may withdraw an adjudication application at any time before an adjudicator is appointed, or, if an adjudicator has been appointed, at any time before the application is determined, by serving written notice. Navigating this strict timeline is critical for any battery dispute where a premature milestone has been claimed.
To successfully execute the withdrawal of an adjudication application, the written notice must be formally served on the correct parties before the adjudicator officially hands down their decision. Section 17A(1) requires service on the respondent and on either the authorised nominating authority or the adjudicator — not all three simultaneously. The operative rule is: before an adjudicator is appointed, serve on the respondent and the authorised nominating authority; after an adjudicator is appointed, serve on the respondent and the adjudicator. As a conservative practice, some practitioners elect to serve all three parties to eliminate any ambiguity, and doing so carries no procedural downside, but the statute does not impose that as a requirement.
Doctrinal Clarity: Statutory Withdrawal Rights vs. The Common Law Abuse of Process Doctrine
At this critical junction, you must differentiate between what the statute allows you to do and how the courts interpret repeat attempts to claim the same money. Misunderstanding the boundary between a statutory withdrawal and a common law abuse of process can result in your business being permanently barred from adjudicating that specific BESS milestone. This section separates the procedural rules contained within the Act from the overarching legal doctrines that govern how tribunals and courts treat second attempts at payment enforcement.
Separating Section 17A Rights from Common Law Estoppel
To navigate a flawed payment claim effectively, integrators must clearly separate the explicit statutory rights granted by the legislation from the common law doctrines applied by the courts. The Act itself provides specific statutory rights—such as the section 17A mechanism allowing the withdrawal of an application prior to a determination. However, the common law doctrine of abuse of process (and the related principle of Anshun estoppel — the rule that a party cannot raise a claim in later proceedings that could and should have been raised in the earlier ones) operates entirely outside the statutory text to prevent a claimant from litigating the same disputed BESS payment claim twice if it has already been subject to a binding determination. If you are dealing with a complex jurisdictional defect, engaging NSW building and construction lawyers early can help separate your immediate procedural options from these longer-term evidentiary risks.
At Merlo Law, we have seen firsthand how these procedural missteps devastate project cash flows across complex commercial BESS deployments in New South Wales and Queensland. Our senior lawyers aggressively manage head contractor disputes by bypassing these tactical traps, ensuring your technical delivery translates directly into enforceable payment outcomes.
The Section 26 Misconception: Why Correcting a Defect Doesn't Renew Your Application Right
Warning: Integrators often incorrectly assume that if they pull a defective claim, they can rely on the statute to just file again once the grid connection is approved. A claimant is statutorily permitted to make a new adjudication application under section 26(1)-(2) in two specific circumstances: first, where the claimant fails to receive an adjudicator's notice of acceptance within 4 business days after the application is made; and second, where an appointed adjudicator fails to determine the application within the time allowed. Both circumstances require the adjudicator to have effectively done nothing — either by failing to accept or by failing to decide within time.
However, if the adjudicator issues a written document stating that they lack jurisdiction to hear the matter, they have arguably not "failed to determine" the application; rather, they have made a binding determination regarding their own jurisdiction. Misinterpreting this distinction is likely to result in the subsequent application being struck down, as section 26 does not typically operate to save a claim that has already received a jurisdictional ruling.
When a Respondent Objects to Your Section 17A Withdrawal
Expert insight: Withdrawing under section 17A after an adjudicator is appointed can trigger significant tactical risk, as head contractors often object to the withdrawal to intentionally force the adjudicator to issue a "no jurisdiction" ruling. If the adjudicator upholds the respondent's objection instead of permitting the withdrawal, they are likely to proceed to a formal determination that the claimant's entitlement to the BESS practical completion milestone had not yet arisen at the time the payment claim was served, which may permanently block the integrator from re-adjudicating that specific payment claim.
Withdrawing under section 17A after an adjudicator has been appointed is not the clean escape it appears to be on paper, and the window in which it is genuinely safe is far narrower than most integrators appreciate. Once the adjudicator is appointed and the respondent has received notice of the application, the head contractor has every commercial incentive to object to the withdrawal. The reason is straightforward: a successful withdrawal returns the integrator to the starting line, whereas a jurisdictional dismissal can permanently remove the milestone from play. Experienced head contractor lawyers understand this asymmetry very well, and in disputes involving significant BESS project milestones, an objection to withdrawal is a standard tactical response — not an exceptional one.
The mechanics of the objection are worth understanding in detail. When the respondent objects, the adjudicator does not simply step back and allow the withdrawal to proceed. Instead, they are likely to consider whether they have the power to permit the withdrawal over the respondent's opposition, and in doing so, they may proceed to assess their own jurisdiction. If they conclude that the application was premature — which, in a DNSP delay scenario, is precisely the finding the head contractor wants — they issue a written determination of no jurisdiction, and the integrator is now in a far worse position than before the withdrawal was attempted. The withdrawal attempt itself has, in effect, forced the jurisdictional ruling that the integrator was trying to avoid.
The primary tactical mitigation is timing: if you are going to withdraw, the safest window is before the adjudicator is formally appointed, because at that stage the respondent has no standing to object to the withdrawal in any procedurally meaningful way. Once appointment has occurred, the calculus changes significantly. If appointment has already happened, the next question is whether the respondent has been served and is aware of the application — if there is any ambiguity on service, that needs to be resolved before any withdrawal notice is issued, because a withdrawal served before the respondent has formally been brought into the proceedings reduces the practical opportunity for an objection. If neither of those options is available, the decision to withdraw must be weighed against the risk that the respondent will object and the adjudicator will proceed to a jurisdictional ruling: at that point, obtaining a rapid assessment of whether the jurisdictional defect is genuinely fatal — rather than merely arguable — is the critical input into the decision.
Surviving an Adjudicator's Jurisdictional Dismissal and the Kwik Flo Precedent
If you missed the window to safely withdraw, or the adjudicator upheld the respondent's objection, you are now holding a determination that states the adjudicator has no jurisdiction. The immediate question is whether you can challenge this ruling or if that specific payment claim is permanently dead. This section outlines the established case law blocking repeat applications and details the specific, high-stakes judicial pathway required to overturn a flawed jurisdictional decision.
How Kwik Flo Restrains Second Adjudication Applications
The boundary for repeat applications is strictly defined by established case law, notably Kwik Flo Pty Ltd v SE Ware Street Dev Pty Ltd [2026] NSWCA 9. In this precedent, the court restrained a second adjudication application on the same claim as an abuse of process following an adjudicator's determination of no jurisdiction. This means battery integrators cannot simply ignore a jurisdictional dismissal, correct the paperwork, and lodge the application again in the hopes of securing a different adjudicator. If the head contractor attempts to improperly enforce a dismissal to freeze your business out of a project, you may need to explore seeking an urgent injunction to preserve your position, and should get legal advice before taking further adversarial steps.
Do not attempt to salvage a defective adjudication application on your own. Request an urgent review of your jurisdictional position today and let our specialists establish an aggressive, legally sound pathway to payment.
Section 32A Quashing: The Supreme Court Pathway
To clear a blocking determination, an integrator must typically pursue formal judicial review, which involves significant legal risk. The Supreme Court holds the discretionary power to set aside all or part of an adjudicator's determination if it is found to be infected by jurisdictional error under section 32A(1) of the Act. Successfully having the Court quash the original invalid determination is often the only way to clear the path for a valid claim to proceed. Because Supreme Court litigation can be financially debilitating for an integration business, the alternative pathway of pursuing the underlying breach of contract debt through the courts — typically the District Court or Supreme Court of New South Wales, depending on the quantum in dispute — may prove more commercial in some circumstances, though considerably slower than statutory adjudication.
Note that the NSW Civil and Administrative Tribunal (NCAT) is not an appropriate forum for this type of claim: NCAT's building dispute jurisdiction is conferred by the Home Building Act 1989 and is confined to residential building work. A commercial BESS installation contract does not fall within that jurisdiction, and a commercial integrator attempting to use NCAT to recover a milestone debt would face a threshold jurisdictional challenge. During any escalation, the strategic deployment of a Calderbank offer can be leveraged to put costs pressure on the respondent.
The Risk of Rolling the Delayed BESS Milestone into the Next Month's Claim
After failing to adjudicate the premature practical completion claim, your first instinct will likely be to just wait for the DNSP to finally sign off, then roll that exact same milestone amount into the following month's standard progress claim. While this seems like the most logical commercial fix, it is where many battery integrators accidentally trigger a fatal statutory bar. This section details the strict rules prohibiting repeat claims in a single month and the evidentiary risks of trying to mask a rejected milestone inside a new claim structure.
The Section 13(5) Restriction on Repeat Claims
The legislation dictates exactly when and how frequently you can demand payment for specific work. A claimant is generally restricted to serving only one payment claim per month for construction work carried out or undertaken to be carried out (or for related goods and services supplied or undertaken to be supplied) in that month, governed directly by section 13(5).
Attempting to submit a new claim for the exact same BESS commissioning work in a subsequent month—if the work has not changed and the first claim was already determined—directly confronts this statutory limitation. It is worth noting that section 13(6) of the Act does permit a claimant to include in a subsequent payment claim an amount that has been the subject of a previous claim, and to claim in one named month for work carried out in a previous named month.
However, that mechanical permission does not insulate the claim from the common law doctrines discussed below — the real danger in a BESS milestone scenario is not section 13(5) operating alone, but the abuse of process doctrine and Anshun estoppel applying to extinguish the entitlement regardless of whether the new claim is technically permissible under the statute. This restriction functions differently from the defences raised in a genuine dispute statutory demand battery scenario, as section 13(5) is a mechanical prohibition on the service of the claim itself.
Abuse of Process, Anshun Estoppel, and the Tactical Danger of Repeating a Dismissed Claim
Expert insight: Integrators often attempt to bypass a failed adjudication by waiting for network approval and then rolling the exact same BESS milestone or variation into the subsequent month's payment claim. Depending on the framing of the first adjudicator's dismissal, attempting to re-agitate the same financial entitlement in a new claim structure can be struck down as an abuse of process. In some circumstances, the related doctrine of Anshun estoppel — which prevents a party from raising a claim that could and should have been pursued in earlier proceedings — may also be invoked, although its application in the SOPA jurisdictional-dismissal context has not been definitively settled by the courts. If a tribunal determines that the core of the dispute was already finalised in the original jurisdictional ruling, this tactic is likely to fail under either doctrine, potentially locking up significant cash flow for the business indefinitely.
The instinct to wait for DNSP approval and then simply re-package the same practical completion amount inside the next progress claim is understandable — it feels like a clean fix that sidesteps the legal complexity of the earlier dismissal. The problem is that what looks like a fresh payment claim on the face of the document may, in substance, be asking a new adjudicator to decide exactly the same disputed entitlement that an earlier adjudicator has already ruled upon. Depending on how the first dismissal was framed, a court or subsequent adjudicator may treat the core of the dispute as already finalised, regardless of the new claim number or the updated reference date.
The abuse of process risk — and, where applicable, the related Anshun estoppel risk — is heightened in BESS milestone disputes specifically because the practical completion event is typically binary and singular — either the system was complete and the DNSP had signed off, or it was not. Unlike a variation claim that might evolve in scope or quantum across multiple payment cycles, a practical completion milestone is a fixed entitlement tied to a single event. When the first adjudicator's dismissal uses language that characterises the milestone as not having arisen — rather than merely identifying a procedural defect in the claim — that characterisation can be picked up by the head contractor in subsequent proceedings as a finding on the merits of the entitlement, not just on the procedural validity of the claim. The integrator then faces the burden of demonstrating that the first ruling was confined to the procedural defect and did not go further, which is a genuinely difficult argument to run if the dismissal document is not carefully worded.
Navigating these rigid statutory bars demands precise, battle-tested litigation strategy. We frequently deploy advanced dispute resolution mechanisms across NSW and QLD to dismantle improper jurisdictional roadblocks, forcing commercially viable settlements and keeping your integration business moving forward.
The practical consequence is that integrators who roll a dismissed milestone into the next month's claim without first obtaining advice on the precise scope of the adjudicator's earlier language may be advancing a claim that the head contractor can stay or restrain. That litigation, even if ultimately resolved in the integrator's favour, consumes time and legal costs that erode the commercial value of the milestone significantly.
It is worth noting that, as at the date of publication, the leading NSW authority on repeat adjudication applications following a jurisdictional dismissal remains Kwik Flo Pty Ltd v SE Ware Street Dev Pty Ltd [2026] NSWCA 9, which was decided on abuse of process grounds. Whether a standalone Anshun estoppel argument — as distinct from the broader abuse of process doctrine — would succeed in the specific factual pattern of a BESS milestone re-claimed after a prior jurisdictional dismissal has not been the subject of a separate published decision. Integrators should not treat this gap as an invitation to test the boundary; the safer assumption is that either doctrine may be deployed by a respondent to block a re-packaged claim.
Conclusion
When your commercial BESS sits idle waiting for a DNSP connection agreement, the pressure to maintain cash flow by claiming the practical completion milestone is intense. However, as the NSW Security of Payment framework demonstrates, submitting an adjudication application before the network operator provides formal sign-off can result in a fatal "no jurisdiction" ruling. You now understand that while section 17A provides a mechanism to withdraw a premature application, failing to execute that withdrawal before the adjudicator publishes a decision—or before the respondent successfully objects—can transform a simple timing error into a permanent legal block under the abuse of process doctrine.
You also recognise that attempting to save a defective claim by relying on section 26, or by rolling the exact same rejected milestone into the following month's payment cycle, can expose your integration business to severe evidentiary risks and Supreme Court scrutiny. The legislation is unforgiving to those who misinterpret the finality of an adjudicator's jurisdictional determination.
Before you serve your next payment schedule or attempt to withdraw a live adjudication application, the first step is to assess whether the DNSP sign-off clause in your contract is enforceable at all — section 34 of the Act may render it void if it operates as a substantive precondition to claiming rather than a genuine definition of the milestone event. If the clause is void, your payment claim may not be premature and withdrawal may be unnecessary. If the clause survives section 34 scrutiny, you must then confirm that your entitlement to the relevant progress payment has genuinely arisen — including that DNSP sign-off has been formally obtained — and that your payment claim is served on or from the correct date under the Act, before taking any further steps.
FAQs
Can an adjudicator's finding of "no jurisdiction" be overturned under NSW SOPA?
Yes, the Supreme Court of NSW holds the discretionary power under section 32A to set aside an adjudicator's determination if it is infected by a jurisdictional error. This is a complex and costly legal pathway, and success typically depends on demonstrating that the adjudicator fundamentally misapplied the legislation when assessing the BESS milestone claim.
Does section 26 allow a battery integrator to submit a new application if the first one was dismissed?
No, section 26 of the Building and Construction Industry Security of Payment Act 1999 (NSW) only permits a new application if the appointed adjudicator fails to determine the application within the allowed time. A dismissal for lack of jurisdiction is generally classified as a valid determination, meaning section 26 does not usually provide a pathway for a second attempt.
Can you serve a second payment claim for the same BESS practical completion milestone in the next month?
Attempting to serve a second payment claim for the exact same BESS construction work often triggers the prohibition under section 13(5) of the Act. Even if the claim is technically served in a new month, a tribunal may still apply the doctrine of Anshun estoppel to block the claim if the underlying dispute was already determined in a prior adjudication.
When is the latest a contractor can withdraw an adjudication application under section 17A?
Under section 17A(1), a claimant may withdraw an adjudication application at any time before an adjudicator is appointed, or, if an adjudicator is appointed, at any time before the application is determined by serving written notice. However, if the respondent objects to a post-appointment withdrawal, the adjudicator may reject the withdrawal and proceed to a determination.
Why does DNSP approval impact the validity of a BESS payment claim?
Commercial BESS installation contracts often define "practical completion" as occurring only once formal grid connection approval is achieved from the relevant DNSP, such as Ausgrid. However, the enforceability of that contractual requirement must first be assessed against section 34 of the Act, which renders void any contractual provision that excludes, modifies, or restricts the operation of the Act. A DNSP sign-off clause that operates as a substantive precondition to the right to claim — particularly one contingent on a third party acting on a timeline outside the claimant's control — may be void under section 34 on the principles established in Castle Constructions Pty Ltd v Ghossayn Group Pty Ltd [2017] NSWSC 1317. If the clause is void, the payment claim may not be premature. However, if the clause is properly characterised as a definition of the practical completion milestone itself — rather than a precondition to claiming — it may survive section 34 scrutiny, in which case the claimant's entitlement has not yet arisen and the payment claim is likely to be treated as invalid. This distinction is fact-specific and depends on the precise drafting of the relevant clause.
What is the abuse of process doctrine in NSW adjudication?
In New South Wales, the common law abuse of process doctrine legally restricts a claimant from re-litigating a payment dispute that has already been conclusively determined by an adjudicator. This principle prevents battery integrators from launching repeat adjudication applications on identical claims following an initial jurisdictional dismissal.
This guide is for informational purposes only and does not constitute legal advice. For advice tailored to your specific circumstances, please contact Merlo Law
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