The Victorian Court of Appeal has dismissed the appeal in 1559 High Street Pty Ltd v Camillo Builders Pty Ltd [2026] VSCA 129, confirming that the interim payment provisions in the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOP Act)* did not conflict with the Australian Consumer Law (ACL). The appeal upholds the decision at first instance, considered in our earlier update here.

1559HS sought orders in the Supreme Court to set aside an adjudication determination under the SOP Act, and the County Court judgment entered on that determination. It contended that the SOP Act altered, impaired or detracted from the operation of the ACL and was therefore inconsistent with Commonwealth law, contrary to the Commonwealth Constitution. The Supreme Court rejected that argument and 1559HS appealed.

The Court of Appeal granted leave to appeal on two grounds, both directed to whether the SOP Act enforcement provisions are inconsistent with ACL’s misleading and deceptive conduct provisions, and therefore invalid under the Constitution. Those grounds concerned:

• sections 28M, 28O, and 28R(1)-(4) of the SOP Act, which deal with recovering an adjudicated amount; and
• sections 28R(5)(a)(i) and 28R(5)(a)(ii) of the SOP Act, which deal with setting aside a County Court judgment.

The Court of Appeal rejected those arguments and confirmed that the SOP Act creates a ‘novel’ statutory right to a provisional payment of an adjudicated amount, which is separate and distinct from other rights which arise under the contract, or under the ACL. A provisional payment under the SOP Act does not prevent a party from pursuing, and a court from finally determining, ACL claims in a later proceeding.

On this basis, the Court held there was no inconsistency between the relevant provisions of the SOP Act and the ACL and dismissed the appeal.

The decision can be found here.

* The appeal considers Authorised Version No. 013 in force between February 2024 and April 2026. Significant changes to the SOP Act came into effect on 15 April 2026 as reported here including amendments to provisions considered in this decision.