Legal Insights

Will we see more liquidators using SOPA after Seymour Whyte?

By Mathew Stulic, Andrew McGlashan

• 03 April 2019 • 1 min read

The NSW Court of Appeal declined to follow the Victorian Court of Appeal on a key issue of security of payment legislation.

Earlier this year (and not for the first time in the Australian security of payment landscape) an intermediate appellate Court in one Australian State reached a different position on materially identical provisions in the security of payment scheme to that reached by the appellate Court in another State.

In Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in Liquidation) [2019] NSWCA 11, the NSW Court of Appeal declined to follow the Victorian Court of Appeal’s decision in Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247 on a key issue of security of payment legislation, with the NSW Court of Appeal holding that in NSW, key security of payment processes can be initiated (at least) by a claimant in liquidation.

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