Qube Re Services (No 2) Pty Limited v Martinus Rail Pty Ltd

[2026] NSWSC 717

Supreme Court of NSW

Built by Barristers,
For Australian Law.

1. ARBITRATION — Public policy — Whether enforcement of partial arbitral awards is contrary to domestic public policy pursuant to s 36(1)(b)(ii) Commercial Arbitration Act 2010 (NSW) — Whether difference between international and domestic principles concerning public policy in refusing to enforce arbitral awards
1. BUILDING AND CONSTRUCTION — Policy under Building and Construction Industry Security of Payment Act 1999 (NSW) which allows contractors to receive progress payments pending final resolution of dispute — Whether SOPA policy is a public policy for the purposes of s 36(1)(b)(ii)
1. COSTS — Whether plaintiff entitled to its costs — Where defendant may be entitled to further monies following finalisation of arbitration — Where partial arbitral awards final — Whether post-judgment interest rate under Civil Procedure Act 2005 (NSW) is applicable

The public policy exception to enforcement of arbitral awards under s 36(1)(b)(ii) of the Commercial Arbitration Act 2010 (NSW) has the same narrow operation in the domestic context as in the international context — it is confined to awards that violate the most basic, fundamental principles of morality and justice, and the threshold is high and not readily overcome.
The policy underlying the Building and Construction Industry Security of Payment Act 1999 (NSW), while a mandatory statutory regime from which parties cannot contract out, does not embody a 'fundamental conception of morality and justice' constituting public policy for the purposes of s 36(1)(b)(ii), and mere inconsistency with mandatory laws does not engage the public policy ground.
Partial arbitral awards resolving separate questions are final and binding on the issues they determine, consistent with CBI Constructors v Chevron (2024) 283 CLR 172; a party that elected not to include an argument within the scope of the separate question cannot resist enforcement on the basis that the undetermined argument might later affect the result.