The recent decision in Singh v A1 Home Builders Pty Ltd [2025] NSWSC 1521 is a cautionary tale about how a simple typo, combined with a tick-the-box approach to electronic service, can spiral into a Supreme Court dispute.

The story

The builder served a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) and, after no payment schedule was received, lodged an adjudication application. However, when completing the adjudication application form, the builder misspelled the plaintiff’s email address by adding one extra letter. As a result, the adjudicator’s notice of acceptance and the adjudication determination were sent to an email address that did not exist.

The builder’s subsequent service of the adjudication application was also initially sent to the misspelled email address. That error was identified and corrected on the same day. Nevertheless, the plaintiffs, who were not tech-savvy and relied on their son for email communications, argued that the email did not come to their attention at the time. This was because:

a) it was sent by a solicitor in the law firm acting for the builder with whom Mr Singh had no prior dealings; and

b) Mr Singh was mistrustful of emails containing links, having previously been warned about phishing scams and found it difficult to distinguish between legitimate communications and scams.

The plaintiffs only discovered what had occurred in relation to the adjudication when the builder obtained District Court judgment for nearly $290,000 and threatened to pursue a garnishee order.

The Court’s findings

The court held that the adjudicator’s acceptance of the application had not been properly served on the plaintiffs. Under section 19 of SOPA, an adjudicator is not appointed unless they accept the application by causing notice of acceptance to be served on both the claimant and the respondent. In the absence of that step, the adjudicator had no jurisdiction.

Accordingly, the determination was declared void and the court set aside the District Court judgment.

The Court emphasised that service of the acceptance notice is not a mere technicality; it is a statutory precondition. It marks the point from which the respondent may lodge an adjudication response and triggers the adjudicator’s 10-business-day deadline. Without proper service of the acceptance notice, the adjudication process collapses.

What went wrong

It appears that the builder failed to realise that the adjudicator had used the misspelled email address, despite having identified and corrected the error itself, or failed to appreciate the requirement in section 19 of SOPA for service of the adjudicator’s acceptance notice.

In addition, the builder relied on mechanical compliance with email service of the adjudication application, sending Dropbox links without confirming receipt. Given the plaintiffs’ limited familiarity with email, a simple follow-up phone call or personal service could have avoided the plaintiff’s arguments concerning phishing scams and emails from unknown third parties. While the court was not ultimately required to determine these issues, the time and expense involved in investigating and defending them could have been avoided.

Why this matters

This case is a stark reminder that:

• Electronic service under SOPA is not foolproof. A typo can be fatal.
• Applicants should verify service, particularly where parties may not be tech-savvy.
• Section 19 of SOPA is clear: an adjudicator’s appointment is not effective unless notice of acceptance is served on both parties.

Finally, this was an expensive fight over a procedural point. The builder incurred the risk of significant legal costs in the Supreme Court rather than addressing the substantive dispute. It is a cautionary tale that procedural shortcuts and aggressive litigation strategies can backfire.

This communication is sent by Kreisson Legal Pty Limited (ACN 113 986 824). This communication has been prepared for the general information of clients and professional associates of Kreisson Legal. You should not rely on the contents. It is not legal advice and should not be regarded as a substitute for legal advice. The contents may contain copyright.

Introduction

Tendering for public projects can be challenging. Unlike private work, public authorities follow strict rules and procedures. Even small mistakes can lead to non-compliance and rejection. Deadlines are often tight, requirements can be unclear and the process can involve substantial paperwork and legal obligations.

This guide explains the ten most common problems contractors face when bidding for public work and provides simple and practical steps to overcome them. From preparing your documents and managing short timeframes to handling legal risks and digital submissions, these tips will help you submit compliant and competitive bids with confidence.

Complex and rigid tender requirements

The problem:

Public tenders often have strict rules. If you miss even one required document or make a small mistake, your bid may be rejected automatically. Public authorities rarely allow corrections after submission.

How to avoid this:

1. Create a compliance checklist (compliance matrix):

Go through the tender documents line by line. For every requirement, note what you will provide and where it will be attached.

Example: If the tender says, “Clause 3.2 – Provide ISO 9001 certificate,” attach the certificate in the correct section and label it clearly.

2. Prepare a standard document pack:

Keep a folder ready with common documents you will need for most tenders, such as:

• Anti-collusion declaration (a statement that you are not fixing prices with competitors)
• Conflict of interest statement
• Tax clearance certificate
• Quality Management System declaration (a statement that your products meet quality standards)
• Company policies for Quality, Health, Safety and Environment
• CVs of key staff
• Past project references

3. Do a final review (“red team”):

Have someone who was not involved in preparing the bid check the submission. They should confirm:

• All forms are signed (and witnessed/notarised if required)
• All attachments are included
• Pricing is correct and consistent across schedules
• Nothing is missing, duplicated or in the wrong format

4. Highlight critical items (“fatal risks”):

Make a short list of items that will cause automatic rejection if missing such as:

• Signed forms
• Bid bond (a financial guarantee from your bank or insurer)
• Correct pricing format
• Proof you attended any site visit (if applicable)

5. Organise your files:

Name files clearly (e.g., “Volume1_TechnicalProposal_Final.pdf”) and check the tender portal rules for file size, file type and naming conventions.

Short timeframes

The problem:

Tender deadlines are often tight, leaving little time for careful pricing and review.

How to avoid this:

• Keep standard content ready: Company profile, safety plans, environmental plans and CVs should be prepared in advance.
• Start fast: Within hours of receiving the tender, decide whether you will bid, assign tasks and set internal deadlines.
• Use cost benchmarks: Maintain typical rates and productivity figures so you can price quickly and consistently.
• Plan for approvals: Ensure the right managers are available to approve risk allowances and commercial positions quickly.

High administrative burden

The problem:

Tenders require substantial documentation, which can overwhelm smaller teams.

How to avoid this:

• Appoint a bid coordinator: One person should manage tasks, deadlines and document control.
• Use templates: Prepare standard sections like methodology, risk management and program that you can adapt quickly.
• Control versions: Store documents in one location and track changes to avoid confusion.
• Outsource design work (if needed): Consider external support for formatting, graphics and final layout.

Unclear or ambiguous specifications

The problem:

Tender documents sometimes leave scope unclear, which can lead to disputes later.

How to avoid this:

• List assumptions and exclusions: Clearly state what you have assumed and what is not included in your price.
• Check for gaps: Compare the bill of quantities, drawings and specifications to identify inconsistencies.
• Ask questions early: Submit clarification questions as soon as possible and track responses (and any addenda).
• Gather site information: Visit the site if allowed, take photos and check local conditions and constraints.

Price-driven evaluation

The problem:

Lowest price often wins, which can tempt contractors to underbid and risk profitability.

How to avoid this:

• Price carefully: Use detailed costing and cross-check against benchmarks and past projects.
• Offer alternatives (if permitted): Suggest cost-saving options that still meet requirements.
• Include risk costs: Add allowances for likely risks (e.g., delays, access constraints, unknown ground conditions).
• Show value: Where possible, explain how your approach saves time, reduces defects, improves safety or lowers whole-of-life costs.

Limited access to information

The problem:

You may not receive full site data or have enough time for investigation.

How to avoid this:

• Start with desk research: Use maps, publicly available records and data, including local planning information to understand the site.
• Price unknowns separately: Use provisional sums or unit rates for uncertain items (where the tender permits).
• Talk to local experts: Subcontractors and suppliers often know site conditions and local rules.
• Use photos or diagrams: Demonstrate your understanding of the site and constraints within your bid.

Strict compliance and legal risks

The problem:

Public tenders include strict legal requirements and mandatory declarations.

How to avoid this:

• Check all legal documents: Make sure you include bid bonds, insurance certificates, licenses and required declarations (e.g., anti-collusion, modern slavery).
• Keep records: Communicate only through official channels and retain copies of all questions, responses, addenda and submissions receipts.
• Review contract terms: Identify clauses that contain significant risks (e.g., uncapped liability, onerous indemnities, delay regimes) and propose departures if the process allows.

Financial and performance guarantees

The problem:

Bid bonds, performance guarantees and insurance requirements can strain cash flow and capacity.

How to avoid this:

• Talk to your bank early: Confirm you can provide the required guarantees and understand lead times.
• Negotiate terms (where possible): Request guarantees that reduce after milestones or practical completion.
• Prepare insurance evidence: Obtain letters from your broker confirming the correct coverage and limits.
• Check subcontractors: Ensure key subcontractors can meet guarantees, insurance and compliance requirements.

Digital submission challenges

The problem:

Tender portals can be tricky. – Document uploads can fail, formats can be rejected or deadlines can be missed.

How to avoid this:

• Prepare files early: Finalise documents at least a day before submission.
• Follow portal rules: Check file size, file type and naming requirements and whether zip files are allowed.
• Do a test upload (if possible): Upload a dummy file to confirm access and understand the process.
• Have backup plans: Two people should be ready to submit and take screenshots (and save confirmation emails/receipts) as proof.

Lack of feedback

The problem:

Authorities often provide limited feedback on why you were unsuccessful.

How to avoid this:

• Ask for a debrief: Request scoring details and comments (where available).
• Review internally: After each tender, discuss what worked and what did not.
• Track results: Keep records of win/loss patterns to improve future bids.
• Update your templates: Apply lessons learned to strengthen your next submission.

Conclusion

Winning public tenders is not just about offering the lowest price, it is about submitting a complete, compliant and well-prepared bid. By following the steps in this guide, you can reduce the risk of disqualification, manage uncertainty and improve your chances of success. Build your document library, use checklists and review every bid carefully. Over time, these habits will make tendering less stressful and more predictable, helping your business grow through public projects.

This communication is sent by Kreisson Legal Pty Limited (ACN 113 986 824). This communication has been prepared for the general information of clients and professional associates of Kreisson Legal. You should not rely on the contents. It is not legal advice and should not be regarded as a substitute for legal advice. The contents may contain copyright.

Introduction

Since 31 December 2003, Australia has maintained a total ban on the importation of asbestos. It might therefore seem improbable that asbestos would appear in components of modern wind turbines. Yet, multiple wind farm operators have recently confirmed that brake pads used in internal service lifts (in-tower lifts used for technicians) – supplied by 3S Industry in China – contain asbestos.

While the airborne risk to the public has been reported as low, the discovery raises complex legal questions about liability after practical completion. It brings into focus whether warranties, indemnities and enforcement mechanisms can be relied upon years after commissioning. What remedies may be available under contract or statute? How do these differ across the tiers of the supply chain and what happens when recovery involves overseas suppliers?

This article examines those questions. It explores what legal remedies may exist for principals, EPC contractors and original equipment manufacturers (OEMs) once a project is complete and asbestos is discovered in imported components. It considers how outcomes may turn on the precise wording of contracts, the survival of warranties and the practical challenges of pursuing claims against foreign suppliers. Finally, it looks at cross-cutting risks such as insolvency and insurance gaps and outlines contractual and control measures that may help prevent similar issues in future projects.

Principal/Operator: Remedies that may be available (depending on the contract)

The principal’s recovery options depend heavily on the procurement pathway – whether through a standalone supply agreement, a nominated supplier arrangement or an EPC turnkey contract. Each structure carries different warranty and indemnity implications and the discovery of asbestos could qualify as a latent defect. However, the effect of these clauses may depend on the precise drafting, any limitations of liability and the extent to which they survive completion.

Standalone supply agreement with OEM or supplier

The principal may assert breach of warranty (e.g., non-compliance with Australian law, no hazardous substances) and seek damages and/or indemnity for its losses including testing, removal, shutdown costs and lost profits. If contractual limitations restrict recovery, the principal may explore product liability or negligence claims against the OEM or supplier.

Nominated supplier (tripartite or free issue)

Where the principal used a nominated supplier structure, tripartite arrangements may provide direct warranties and step in or direct recourse rights against the OEM or supplier. The principal may require the EPC contractor to facilitate removal/replacement while pursuing the nominated supplier for indemnity, but success may hinge on whether warranties and indemnities survive completion, are assignable and treat hazardous materials as a defect category. Our recent eBook, Risks in Renewable Energy Subcontracts for Specific Subcontractors, discusses the interface and warranty risks inherent in nominated supplier models and how back-to-back obligations may be structured to preserve long tail rights.

EPC turnkey (full wrap)

Under an EPC contract, the principal may rely on compliance warranties and latent defect provisions to claim against the EPC contractor for supplying (or allowing into the works) a prohibited material or defective product. The EPC contractor’s obligations may include rectification at its cost and an indemnity for related expenses – again subject to exclusions, caps on liability and survival durations. If retention money, bonds or parent company guarantees have expired, the principal’s only realistic recourse may be litigation; otherwise, any remaining security may be called upon to fund remediation.

Insurance

In parallel, the principal may consider notifying insurers under property, public liability or environmental impairment policies, recognising that policy triggers, pollution exclusions and the distinction between occurrence-based and claims made coverage may limit recovery. If coverage responds, the insurer may pursue subrogation rights against the OEM/supplier or EPC contractor. The alignment (or misalignment) between contractual indemnities and insurable risks – highlighted in our eBook – is often pivotal to whether insurance can meaningfully support recovery.

Where the operator is not the original developer

Where the operator is not the original developer, remedies may also depend on the contractual relationship between the operator and the principal at the time of the asset transfer. If the operator acquired the wind farm under a sale agreement, the scope and survival of warranties and indemnities in that transaction may be critical. For example, if the sale contract included an assignment of construction warranties, the operator may have direct recourse against the OEM/supplier or EPC contractor.

Conversely, if those rights were not assigned or were time barred, the operator’s recovery may be limited to claims against the principal or seller under the sale agreement, which itself may contain liability caps or exclusions. The principal may then seek to make corresponding claims against the OEM/supplier or EPC contractor. This creates an additional layer of complexity because the operator’s remedies may hinge not only on the original construction contracts but also on the terms of the asset transfer.

EPC Contractor: Post completion remedies that may exist

Assuming practical completion and handover have occurred, the EPC contractor may look downstream to enforce back-to-back warranties and indemnities against the OEM and if accessible, against the lift/brake supplier.

Where the EPC contractor gave the principal compliance and hazardous materials warranties, it may seek recovery from the OEM or supplier for breach of warranty, including the principal’s losses and the EPC contractor’s own costs of testing and removal. The viability of that recovery may rest on whether the OEM’s or supplier’s warranty regime survives completion, the extent of any liability caps and whether hazardous materials are expressly captured as defects. In the absence of sufficient contractual rights, the EPC contractor may pursue product liability or negligence claims against the OEM or supplier. The EPC contractor may also consider whether insurance responds, in much the same way as described above for the principal.

OEM (Turbine Supplier): Recovery from original overseas supplier in China

For the OEM whose lift assemblies included brake pads sourced from 3S Industry or similar suppliers, the key question is upstream recovery. The OEM may rely on the purchase agreement and its supplier quality and compliance commitments to claim breach (e.g., “asbestos free”, compliance with importing country laws, adherence to banned substances lists). It may seek recovery from the supplier for the principal’s and the EPC contractor’s losses as well as its own costs of testing and removal. However, the likelihood of meaningful recovery will depend on several hurdles:

• Governing law and jurisdiction. If the purchase contract is governed by Chinese law with disputes heard in Chinese courts or CIETAC arbitration, the OEM may have to prosecute in China. Even if the contract provides for offshore law and jurisdiction, enforcing a foreign judgment in China may be challenging without a reciprocal arrangement. By contrast, arbitral awards may be more readily enforceable under the New York Convention (to which China is a party).
• Proof of breach and causation. The OEM may need robust materials testing (from accredited labs) and chain of custody evidence to show the pads contained asbestos at the relevant point when delivered.
• Supplier solvency and asset location. Recovery may be constrained if the supplier is thinly capitalised or assets are situated in jurisdictions where enforcement can be difficult. Even if liability is established, collection may require locating attachable assets, pursuing bank accounts and navigating China’s enforcement system. Parallel reputational and regulatory pressures on suppliers may support settlement leverage but is not guaranteed.
• Contractual caps, exclusions and time bars. Supplier agreements often include liability caps, exclusions of consequential loss and short claim notice periods. The OEM’s ability to recover full costs may be curtailed unless hazardous materials are carved out from caps or categorised as wilful misconduct/fraud.

Cross cutting considerations: Foreign procurement risk, security/insurance and insolvency

Because asbestos remains legal in some jurisdictions and the Australian Border Force operates a risk based compliance model, at risk components may enter despite a total domestic ban. This divergence in standards means contractual diligence and testing obligations may be more critical than reliance on border controls alone.

Post completion, if retention money, bonds or parent company guarantees have expired, insurance may be the only non-litigious lever – subject to exclusions and alignment with indemnity clauses. Conversely, if counterparties (EPC contractor, OEM or the supplier) have dissolved or become insolvent, claims may be practically uncollectable, placing greater emphasis on long tail security negotiated at contract formation rather than after defects emerge. Our eBook discusses these long tail risks across subcontractors and the misalignment commonly seen between indemnity scopes and available insurance.

Future proofing: Mechanisms that may protect principals and contractors

To strengthen long tail protection for health and safety defects, parties may adopt the following mechanisms at the outset:

• Parent company guarantees and latent defect bonds that survive for 10–20 years and expressly cover hazardous materials and regulatory breaches, with clear assignability and step in rights if the EPC contractor or OEM ceases to exist.
• Tripartite warranties with explicit survival clauses from nominated suppliers, so the principal may enforce directly against the OEM or supplier if the EPC contractor is out of the frame.
• Hazardous materials clauses requiring zero asbestos compliance supported by accredited laboratory certification, audit/access rights and indemnity triggers upon detection.
• Insurance alignment so that indemnities reflect insurable risks. Extended reporting and discovery periods and additional insured endorsements may improve the chance of cover responding to late emerging defects.
• Supplier QA and arbitration design: Tiered factory audits, batch traceability and arbitration seats/venues that may maximise enforceability against overseas suppliers, recognising the realities of cross border judgment enforcement.

Conclusion

On completed wind projects, asbestos discoveries in lift brake pads present legal questions more than scheduling ones. Principals, EPC contractors and OEMs may have meaningful remedies, but only to the extent their contracts and insurance policies have been drafted to preserve long tail rights and to navigate the realities of overseas enforcement. The incident is a tangible reminder that hazardous materials verification, robust warranty survival and enforceable recourse remain important to renewable energy projects.

The asbestos issue also underscores the need for proactive risk management at contract formation. Key measures include drafting warranties and indemnities that expressly cover hazardous materials and survive for extended periods, securing long-tail protections such as parent company guarantees and latent defect bonds and aligning insurance coverage with contractual obligations. Incorporating rigorous supplier audits, accredited testing and enforceable dispute resolution mechanisms can significantly reduce exposure. Ultimately, prevention through robust contractual and quality assurance frameworks is far more effective than relying on post-completion remedies.

This communication is sent by Kreisson Legal Pty Limited (ACN 113 986 824). This communication has been prepared for the general information of clients and professional associates of Kreisson Legal. You should not rely on the contents. It is not legal advice and should not be regarded as a substitute for legal advice. The contents may contain copyright.