Corrs Projects: In Scope | September 2025
Andrew Stephenson
Technology, Engineering & Construction Projects Dispute Resolution Expert (domestic & international arbitration)
We are pleased to share with you the latest edition of Corrs Projects: In Scope, a regular projects update from Corrs Chambers Westgarth.
In Scope will draw your attention to noteworthy news in the projects sector, from construction and engineering projects to developments in energy and infrastructure, along with relevant legal matters, and regulatory and legislative change.
We hope you find this edition of In Scope both informative and thought provoking.
Kind regards Corrs Projects team
In the news
Marinus Link Stage One receives Final Investment Decision and announces preferred bidder
The Tasmanian Premier has announced a Final Investment Decision (FID) to proceed with Stage One of the Marinus Link Project, a 750-megawatt undersea electricity connector between Tasmania and Victoria (Marinus Link). The FID came after the Tasmanian Government secured financial agreements with the Commonwealth and Victorian Governments. On 8 September 2025, it was announced that a joint venture of DT Infrastructure and Samsung C&T Corporation (TasVic Greenlink) was the preferred bidder for the project’s major civils and construction tender. Project Marinus comprises the Marinus Link and the North West Transmission Developments (NWTD). The NWTD will upgrade Tasmania's transmission network to support the increased interconnection as a result of the Marinus Link. Construction of the Marinus Link is proposed to begin in 2026 and be completed by 2030, with NWTD Stage One construction also commencing in 2026 and being completed by 2029.
Environmental approval given for Muswellbrook solar and storge project in the Hunter Valley, NSW
OX2 has received approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) for its proposed 135-megawatt solar and storage project in Muswellbrook, in the NSW Hunter-Central Coast renewable energy zone. The project site is adjacent to the Muswellbrook Coal Mine, which ceased operations in 2022, on land primarily owned by mine operator Idemitsu Australia. In approving the solar farm, the Independent Planning Commission concluded the project would play a key role in New South Wales’ transition to renewable energy and achieving its renewable energy targets.
Waratah Super Battery connected to the grid and partially enabled
Australia’s most powerful battery, the Waratah Super Battery, is now connected to the grid. Transgrid has announced the battery will now enable the delivery of the ‘System Integrity Protection Scheme’. The scheme requires the battery to operate as a ‘shock absorber’, allowing more power to be carried over the transmission lines into major centres. The Waratah battery will make available up to 700 MW and 1,400 MWh at various times. It is expected to be fully operational later this year at 850 MW/1,680 MWh. It is located on the site of the former Munmorah Power Station on the NSW Central Coast.
Queensland Productivity Commission releases its Construction Productivity interim report
The Queensland Productivity Commission (QPC) has released an interim report ‘Opportunities to Improve Productivity of the Construction Industry’ as part of its inquiry into the Queensland construction sector. The QPC has graded construction productivity in Queensland as weak and provides four preliminary reform areas, including improving government procurement policies, improving land use regulations, improving the regulation of building activity, and improving labour market operations. The final report is due 24 October 2025.
Contracts awarded for Urban Utilities’ Next Generation for Delivery program
Urban Utilities has awarded three contracts as part of its Next Generation for Delivery program, which will deliver its multi-billion-dollar capital program over the next decade. According to media coverage the partners will “drive innovation and efficiencies in the delivery of critical water and wastewater infrastructure to cater for growth and boost network resilience, aimed at providing long-term savings for customers”. The contracts are for an initial period of five years, with the option for a three-year and then a two-year extension. The awarded contracts are as follows:
Department of Defence awards three Base Services packages
The Department of Defence has awarded three Base Services packages. One of these packages was awarded to Downer EDI Limited at an approximate value of $3.05 billion. This is for the Property and Asset Services across the combined NSW and Australian Capital Territory region, and Queensland region. Another two packages were awarded to Ventia at an approximate value of $2.7 billion. These packages are the Living and Working Services in the Northern Territory, Victoria and Tasmania and Property and Asset Services in Western Australia, Victoria and Tasmania. All packages are for an initial term of six years with two extension options of between one and three years up to a maximum term of 10 years.
Western Australian Government announces contracts for electricity transmission infrastructure
The Western Australia State Government has announced new contracts totalling $342 million to UGL Engineering, Acciona and GenusPlus for Clean Energy Link – North. This project delivers major transmission network upgrades vital to WA’s energy transition. It includes high-capacity transmission lines, terminals, substations, and transformers installed in the regions north of Perth. These contracts will deliver a 26.5km overhead 132kV transmission line from Wangara to Neerabup Terminal, new 132kV and 330kV terminals and lines within the existing network, including existing line conversions and upgrades.
Byford Rail Extension section of Western Australia METRONET to open
It has been announced that the Byford Rail Extension and the remaining outer section of the Armadale Line, part of Western Australia’s METRONET, will open for passenger services on 13 October 2025. The Byford Rail Extension includes a brand-new train station in Byford as well as a new, elevated station built in the centre of Armadale.
Western Australia’s Environmental Protection Authority approves the Port Headland iron project
Western Australia’s Environmental Protection Authority has approved a $4 billion the Port Hedland iron project. The project includes a pellet plant and a hot briquetted iron plant, consuming 3–3.5 million tonnes of iron ore annually. Around two million tonnes of hot briquetted iron is estimated to be produced each year, with the remainder exported as pellets. It is located in the Boodarie Strategic Industrial Area approximately 10 km south-west of Port Hedland in the Pilbara region. Supporting infrastructure includes hydrogen production and storage, a nitrogen plant, handling and storage facilities, power transmission and carbon capture, storage and transport infrastructure.
Olympic Games projects update
Victoria Park Precinct Master Plan. On 17 September, the Queensland government appointed Arup to lead the Victoria Park Precinct Master Plan. The precinct includes the new stadium, the National Aquatic Centre and the Brisbane Showgrounds.
Principal architect. GIICA has opened Expressions of Interest for principal architects for Brisbane Stadium and the National Aquatic Centre.
Delivery Partner. On 1 August 2025, GIICA commenced procurement for a Games Delivery Partner. The Delivery Partner will provide program management services across the multibillion-dollar infrastructure program, covering planning, risk, scope, cost and schedule coordination. It was announced on 26 August 2025 that 48 submissions had been received. GIICA is intending on selecting a Delivery Partner by the end of the year.
Registration of Interest – new and upgraded venues. On 1 August 2025, GIICA opened its Registration of Interest for design and construction of the 17 new and upgraded Games venues. It was announced on 26 August 2025 that 250 submissions had been received.
Commonwealth to contribute to building 2032 Olympic venues
On 20 August 2025, the Australian and Queensland Governments signed an Intergovernmental Agreement. This will guide how both Governments collaborate on delivering the Brisbane 2032 Olympic and Paralympic Games. The Australian Government has allocated a capped contribution of $3.435 billion to the $7.1 billion Games Venue Infrastructure Program, which will see 17 new or upgraded venues delivered across Queensland. This includes the main 63,000 seat stadium at Victoria Park and the National Aquatic Centre. The Australian Government funding is conditional on:
Case updates
Synergy Construct Australia v GSA North Terrace Pty Ltd ATF GSA Terrace Unit Trust [2025] SASCA 72
Key takeaways:
The Supreme Court of South Australia granted an injunction restraining a principal from calling upon bank guarantees under a design and construct contract. The contract permitted a call by the principal in the event of a ‘bona fide’ claim. However, there was a dispute as to whether the security ought to have been returned prior to the principal having recourse to it. That dispute dictated the grant of the injunction. This decision provides commentary on the risk allocation function that security performs under contract. While it remains the case that security can be properly characterised as a risk allocation device, that risk allocation only continues up to the point the security was required to be released. Where there is a dispute as to whether the security ought to have been returned, the risk allocation in the contract was not determinative of the balance of convenience and whether the injunction should be given.
Background
Synergy Construct Australia Pty Ltd (Synergy) was engaged by GSA North Terrace Pty Limited (GSA) to design and construct a student accommodation building under a standard design and construct contract (the Contract). Under the Contract, Synergy was required to provide bank guarantees in GSA’s favour (the Guarantees). Neoscape Pty Ltd was appointed under the Contract to act as an agent of GSA and administer the Contract fairly and reasonably (the Superintendent).
Clause 5.2 of the Contract entitled GSA to recourse, by way of the Guarantees, upon the existence of a bona fide claim. It also precluded Synergy from restraining GSA from making a demand on the Guarantees. Clause 5.4 outlined the requirement for GSA to release and return the Guarantees within 14 days after issuance of a final certificate by the Superintendent.
During the defects liability period following practical completion, the Superintendent identified a defect in the work. Synergy contested that the defect was its fault, but agreed to arrange rectification works. Discussions were then held regarding the return of the Guarantees, and an agreement was reached between the parties that appeared to create a new regime for the release of the Guarantees according to various milestones relating to the defect (the Agreement). These milestones were not subsequently met in full.
Disputes arose around Synergy’s final payment claim and the characterisation of the defect as a variation to the Contract works. However, a final certificate was issued by the Superintendent (the Alleged Final Certificate) which did not assert any ongoing defects.
At first instance, Synergy sought an injunction refraining GSA from making any demand upon the Guarantees. It argued that GSA had been required to return and release the Guarantees per clause 5.4 and hence could not call upon them after this. Synergy also contended it had done all it was required under the Agreement, and thus the Guarantees also were to be released on this basis. GSA argued that the Alleged Final Certificate was not a final certificate for the purpose of clause 5.4 as it was issued prematurely, prior to expiry of the last defects liability period. It also disputed the effect of the Agreement and that Synergy had satisfied the milestones.
The primary judge found there was a serious question to be tried as to the obligation to return the Guarantees. However, the primary judge found that Guarantees were risk allocation devices and on that basis refused to grant an injunction. Synergy subsequently appealed. The Court of Appeal found that the essential question on appeal was “whether, having concluded that there was a serious question that GSA had come under an obligation to return the bank guarantees before it had made or foreshadowed a demand on them, the judge erred by treating their character as risk allocation devices as effectively controlling the availability of interlocutory injunctive relief and as neutralising the prejudice Synergy would suffer if the injunction were refused”.
Decision
The Contract
The Court first considered the relevant clauses of the Contract. It deemed clause 5.2 made explicit that the Guarantees were risk allocation devices. That is, they are used to allocate which party is to be out of pocket for the duration of an unresolved dispute. Further, in reading clause 5.2 in the context of clause 5.4, the Court held that clause 5.2 assumes that at the relevant time GSA remains entitled to retain the Guarantees.
The Court additionally held that, upon clause 5.4 being engaged, there was necessarily “an implied promise not to have recourse to the security because to do so would fundamentally undermine the obligation to release and return the security”.
The Agreement The exact effect of the Agreement and particularly whether it varied the Contract was in contention. The Agreement stipulated at its conclusion that “[f]or clarity, the above is not an agreement to vary the rights and/or obligations under the Contract”. The Court considered this would negate any actual effect of the Agreement. While unnecessary to fully resolve, the Court explained a common sense and commercial approach would construe that the Agreement did not intend to vary the Contract terms except to the extent required. It also noted that the Agreement appeared to effectively contemplate the return of the Guarantees at an earlier date than would have been required under clause 5.4 of the Contract.
Test for an injunction The Court considered the various cases that have placed significant importance on whether the relevant bank guarantee is intended as a risk allocation device. However, the Court held that an injunction sought in relation to recourse to a bank guarantee nevertheless requires application of the same set of principles as other injunctions. That is, the applicant must demonstrate both:
The Court discussed that the previous cases surrounding guarantees as risk allocation devices “are not authority for a proposition that, where bank guarantees are to operate as risk allocation devices under a construction contract during the period prior to their required release, that characterisation dictates the outcome of the balance of convenience inquiry arising upon demonstration of a serious question to be tried that the guarantees were required to be released prior to the owner’s proposed recourse”.
Further, the Court rejected any contention that a guarantee being characterised as a risk allocation device necessitates refusal of an injunction (as contemplated in the previous instance judgment, which cited Daewoo Shipbuilding & Marine Engineering Co Ltd v INPEX Operations Australia Pty Ltd [2022] NSWSC 1125). Instead, the Court considered that characterisation of the Guarantees as risk allocation devices is relevant in determining prejudice under the second element. Application
There was no dispute on appeal that there was a serious question to be tried. The Court affirmed the first instance judgment that there was a serious question to be tried as to whether GSA’s obligation to release the Guarantees had arisen following the issuance of the Alleged Final Certificate. The Court additionally considered there was a serious question to be tried regarding whether the obligation had arisen by reason of the Agreement. It reasoned that it was arguable that Synergy had substantially performed the Agreement such that GSA was required to release the Guarantees.
The Court accepted that Synergy would suffer prejudice if no injunction was granted, since GSA could call on the Guarantees. While it may be that Synergy voluntarily agreed to this kind of prejudice through inclusion of the Guarantees in the Contract, the Court highlighted the applicable prejudice related to a period after which it is arguable the Guarantees were to be released.
The Court was not satisfied that GSA would suffer any specific prejudice, merely that it would have no recourse to the Guarantees at this time. It was also noted that the Guarantees would remain available to GSA after determination of the dispute if such dispute was found in GSA’s favour. Further, any financial prejudice that could arise by reason of delay in access to the Guarantees could then be claimed as damages against Synergy at that time. In the Court’s view, whilst there are competing risks of injustice whichever course is adopted, the balance of convenience favours the grant of an interlocutory injunction.
Access the case here.
Legislation updates
Electricity Infrastructure Investment Amendment (Priority Network Projects) Act 2025 (NSW)
On 13 August 2025, the Electricity Infrastructure Investment Amendment (Priority Network Projects) Act 2025 (NSW) received royal assent. This legislation amends the Electricity Infrastructure Investment Act 2020 (NSW) to (among other things):
Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Bill 2025
On 10 September 2025, the Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Bill 2025 was introduced and had its first reading in the Victorian parliament. The following changes are expected to be in effect by 1 September 2025 to the Building and Construction Industry Security of Payment Act 2002 (Vic):
These changes will apply retrospectively, except where a payment claim has been served or adjudication application has been commenced but not yet determined.
Journal articles
Todd Spiller, Jonathan Hohl and Joely Balchin, ‘Representation with Respect to Future Matters under the Australian Consumer Law and the Trade Practices Act – Pleading as to Reasonable Grounds’, (2025) 40(2) Building and Construction Law Journal 102
In this article the authors consider the increasing regularity of misleading or deceptive conduct being alleged in construction litigation. Specifically, they consider cases where the plaintiff-representee alleges a misleading representation has been made with respect to a future matter, where the issue in question is whether the representation was made without reasonable grounds. The article examines the proper approach to pleading as to reasonable grounds having regard to the statutory regime.
Cara North and Eleanor Clifford, ‘Multi-party and Multi-contract Arbitrations in Australia: A Perennial Problem in Disputes Involving Major Projects’ (2025) 42(2) International Construction Law Review
In this article the authors explore the challenges that arise when parties are faced with multi-contract and multi-party construction disputes and considers potential solutions available in Australia. The article also considers the additional problems that arise as a result of Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24, in which the Australian High Court held proportionate liability legislation applies to arbitrations where the substantive law is that of Australia.
Doug Jones AO, ‘Damages in International Arbitration?’ (2025) 42(2) International Construction Law Review
In this article the author considers the proactive attempts that should be made by tribunals to ensure that issues of damages are dealt with in an informed and appropriately detailed way. He provides what tribunal members should undertake as part of this inquiry. Overall, the author considers a tribunal’s proactive management of party-appointed experts, including those who are not versed in what may be considered best practice for international arbitration, will pay considerable dividends for the economy, precision and impartiality of the arbitral process.
Alison McCook and Eloise Gluer, ‘Eco-nomic Harm: ASIC v Mercer and the Road Ahead for Civil Penalties in Greenwashing Cases’ (2025) 33(2) Australian Journal of Competition and Consumer Law 121
In this article the authors consider the judgment in Australian Securities and Investments Commission v Mercer Superannuation (Australia) Ltd, in which Justice Horan of the Federal Court imposed pecuniary penalties of $11.3 million against Mercer for making misleading statements about the sustainability of its superannuation funds. Among other things, the authors discuss the key considerations in applying general consumer protection law to greenwashing cases. These include a corporation’s size when determine the penalty required to achieve deterrence and that the type of harm relevant is tied to the statutory context.
Adrian Coorey, ‘A Timely Reappraisal of the Pattinson Principles on Penalty Analysis’ (2025) 33(2) Australian Journal of Competition and Consumer Law 98
This article provides an in-depth discussion of the landmark High Court decision of Australian Building and Construction Commissioner v Pattinson, the overturned decision of the Full Federal Court and the reasons given by the primary judge. The article concludes by pointing to several key implications the decision has had on the assessment of civil pecuniary penalties, including the clarification that the maximum civil penalties are not just reserved for the most serious contravention of the law, and that the criminal notion of proportionality is not relevant to civil penalty analysis.
Timothy Liau and Alexander Georgiou, ‘Are equitable remedies discretionary?’ (2025) 18(3) Journal of Equity 246
In this article the authors consider what exactly is meant by ‘discretion’ in the context that equitable remedies are often said to be ‘discretionary’ by nature. They argue that simply describing equitable remedies as ‘discretionary’ may be misleading, for it conceals importantly distinct senses in which equitable remedies can engage discretion-like considerations. The authors provide that in the sense in which equitable remedies are ‘discretionary’ should not be overstated, and individuals should be slow to generalise about the distinctiveness of equitable remedies simply on the basis that they are ‘discretionary’.
Authored by Partner Todd Spiller, Special Counsel Thomas Deheny and Senior Associate Cassia Finlay.