In November 2024 we reported on the New South Wales Supreme Court decision in Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd (No 2) [2024] NSWSC 1223 (here). The Supreme Court set aside parts of two adjudication determinations affected by jurisdictional error, relying on section 32A of the Building and Construction Industry Security of Payment Act 1999 (NSW). The Court also refused to grant a stay of enforcement sought by Qube pending final determination of the dispute at arbitration.

In Martinus Rail Pty Ltd v Qube RE Services (No.2) Pty Ltd [2025] NSWCA 49, Martinus appealed against the primary judge’s findings of jurisdictional error; while Qube cross-appealed against the findings of no jurisdictional error and the refusal to grant a stay.

The Court of Appeal allowed the appeal and dismissed the cross-appeal. In doing so, the Court affirmed that there is a high threshold for finding that an adjudication decision was legally unreasonable and affected by jurisdictional error.

The Court of Appeal also upheld the primary judge’s refusal to grant a stay of enforcement. This was on the basis that there is a heavy burden on a party seeking injunctive relief or a stay pending the outcome of proceedings contemplated by section 32 of the Act, which had not been satisfied by Qube.

Qube has now lodged an urgent application seeking a stay on the Court of Appeal’s orders. The Court granted a limited stay on those orders, to allow Qube time to obtain advice regarding a possible application for special leave to appeal to the High Court of Australia.

The Court of Appeal decision is available here, and Qube’s urgent application is available here.