A recent decision by the NSW Court of Appeal in in Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) [2019] NSWCA 11 has reaffirmed that the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) can operate for the benefit of builders and contractors that are in liquidation. While the appeal of the original Supreme Court decision was allowed on other grounds, the Court of Appeal agreed with the primary judge that the Victorian precedent laid out in Façade Treatment Engineering Limited (in liquidation) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247 was “plainly wrong” in ruling that insolvent parties cannot claim under Part 3 of SOPA.

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