Bega Valley Shire Council v Kenpass Pty Ltd [2024] NSWSC 399


The case of Bega Valley Shire Council v Kenpass Pty Ltd [2024] NSWSC 399 involved an appeal by Bega Valley Shire Council (Council) against an adjudication decision in respect of a dispute over a delay claim in course of demolition of a bridge.

On 29 December 2023, Kenpass Pty Ltd (Kenpass) issued a delay claim in the amount of $906,000.00 for delays in the course of works, with the Council responding with a payment schedule on 16 January 2024, with payment listed in the amount of $-43,160.00 (negative value), rejecting the payment claim on the basis that insufficient evidence was provided by Kenpass.

On 31 January 2024, Kenpass applied for an adjudication of its Payment Claim, pursuant to s 17 of the Act. In the course of the adjudication, the Council added arguments that the claim was invalid on the basis Kenpass had applied incorrect rates and suffered no loss.

The adjudicator found against the Council, including in the reasons for the decision that:

226    In the response, the Respondent has provided new reasons for withholding payment not previously raised in the payment schedules.

230   Accordingly, I am not permitted by the Act to consider the Respondent’s new reasons for withholding payment that are set out in the Response.



Whether the adjudicator could consider the council’s new reasons?


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