The New South Wales Court of Appeal’s decision in Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69 in April this year sent out a clear warning to claimants under the Building and Construction Security of Payments Act 1999 NSW ("the Act") that it would in most cases be futile for claimants to lodge a subsequent payment claim under the Act which is the same in content as a prior payment claim and which has already been adjudicated.

In that case the claimant being dissatisfied with the above result of an adjudication of a payment claim, subsequently lodged a second payment claim under the Act which is identical to the first payment claim. The issue before the Court of Appeal was whether the claimant was able to enforce the second payment claim on the basis of not receiving a payment schedule.

The majority in the Court of Appeal (Macfarlan JA with whom Handley AJA agreed) held that because the merits of the first payment claim were already determined in the earlier adjudication determination, the claimant was estopped (prohibited) from relying on the second identical claim for the purpose of obtaining judgment pursuant to the Act.