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  "PageContent": "<h3>Robert Fenwick Elliott | Construction Lawyer: Pendulum Arbitrator and Mediator</h3>This case is by way of update on the case of Goyder v GE-Elecnor, which is of some importance to the application of the 3 principles of preclusion (res judicata, issue estoppel and Anshun) to security of payment in Australia. It is a case I know well, having acted as leading counsel at first instance in the Supreme Court of South Australia, and in the appeal, and now having prepared the application for leave to appeal to the High Court.First, some background. Goyder is building a wind farm. It engaged a joint venture consisting of GE and Elecnor for the project. It should have started in March 2022, but there was a short delay at the beginning of the project, which held up access to the site. The contract was in a fairly typical form; the contractor was entitled to an extension of time in certain circumstances, and to delay costs in a more limited set of circumstances. The contractor claimed an extension of time of 118 days. There was the usual regime for notices and for the parties to meet to try to resolve things. That meeting was held in March 2023, but did not resolve things. The contractor eventually gave notice of arbitration in December 2023, claiming an extension of time of 118 days in delay costs of some $61 million for various categories of alleged cost.  That arbitration continues to struggle on.Meantime, conscious no doubt that these arbitrations take a while, the contractor made a payment claim in February 2024 under the Building and Construction Industry Security Of Payment Act 2009 (SA) including a claim for delay costs of some $15 million, being some of that $61 million. That claim led to an adjudication in which the contractor was partially successful. And then in April 2024, the contractor made a payment claim for some $26 million for another chunk that of those delay costs. These chunks mirrored almost exactly the categories of claim in the earlier notice of arbitration. That second payment claim also led to an adjudication in which, again, the contractor was partially successful. In July 2024, the contractor made a 3rd payment claim for some $21 million by way of delay costs, this time overlapping somewhat with its first claim. And then in December 2024, the contractor made a 4th payment claim for Delay costs, this time for some $15 million. That led to yet another adjudication determination, this time for zero.All of these claims were based on the same alleged 118 days delay, the same contractual provision, the same set of contractual notices, and the same unsuccessful dispute resolution meeting back in March 2023. And so in  Continue reading →",
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