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ARTICLE · 19 AUGUST 2024

Recovering improper calls on security - key takeaways from EnerMech v Acciona judgment

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Case clarified that where a party to a construction contract has had recourse to security wrongfully.

AustraliaReal Estate and Construction
Anish Wilson
Anish Wilson
Holly Tang
Holly Tang
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The recent decision by the NSW Court of Appeal in EnerMech Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd [2024] has clarified that where a party to a construction contract has had recourse to security wrongfully, the other party or claimant can seek to recover that amount through the claims and adjudication process contained in the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act). The case highlights the considerations a party must have before seeking to have recourse to security in a construction project as well as the importance of properly preparing payment claims, payment schedules, adjudication applications and adjudication responses particularly in respect of jurisdictional issues.

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