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LKB Group Pty Ltd v Niclin Constructions Pty Ltd[2021] QSC 93

LKB Group Pty Ltd v Niclin Constructions Pty Ltd[2021] QSC 93

SUPREME COURT OF QUEENSLAND

CITATION:

LKB Group Pty Ltd v Niclin Constructions Pty Ltd & Ors [2021] QSC 93

PARTIES:

LKB GROUP PTY LTD ACN 142 841 423 (AS TRUSTEE FOR THE P J MIENERT FAMILY TRUST)

(applicant)

v

NICLIN CONSTRUCTIONS PTY LTD ACN 614 074 065

(first respondent)

AND

THE ADJUDICATION REGISTRAR; QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(second respondent)

AND

PETER THOMAS SARLOS (REGISTERED ADJUDICATOR NUMBER J1158721)

(third respondent)

FILE NO/S:

BS 2612 of 2021

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

11 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

29 April 2021

JUDGE:

Jackson J

ORDER:

The order of the court is that:

  1. Declare that the amended adjudicator’s decision made on 26 February 2021 is affected by jurisdictional error to the extent found in the reasons.
  2. Declare that the amended adjudicated amount is invalid to the extent of $164,932.04 but otherwise remains binding on the parties to the proceeding.
  3. Direct the parties to provide written submissions as to costs no longer than five pages within 7 days.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where the applicant as principal and the first respondent as contractor entered into a contract for construction work – where the amended adjudicated amount included amounts for variations which had been claimed, approved and paid by the principal and were not included in the payment claim – where the amended adjudicated amount included an amount for a variation which the adjudicator in his reasons indicated would be deleted – where the amended adjudicated amount included an amount for “repayment of liquidated damages wrongly set off against [the contractor]” – whether there was a contractual basis for the inclusion of an amount for repayment of liquidated damages in the amended adjudicated amount – whether the amended adjudicator’s decision is affected by jurisdictional error – whether the amended adjudicated amount should be declared invalid and reduced to that extent

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the third respondent decided that the whole amount of the adjudicator’s fees and expenses of $86,605.75 was to be paid by the principal – where the third respondent’s reasons for that decision included that the principal had caused significant increases in the time required to process the adjudication application and the cost of the decision – whether the contractor should be ordered to pay 50 per cent of the adjudicator’s fees and expenses if the amended adjudicator’s decision is found to be affected by jurisdictional error

Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 68, s 69, s 70, s 71, s 73, s 75, s 76, s 79, s 82, s 88, s 89, s 96, s 101

Hervey Bay (JV) Pty Ltd v Civil Mining and Construction Pty Ltd & Ors [2008] QSC 58, cited

COUNSEL:

L Campbell for the applicant

R Schulte for the first respondent

SOLICITORS:

Cornwalls for the applicant

Batch Mewing Lawyers for the first respondent

Jackson J:

  1. [1]
    The applicant (“principal”) applies for declaratory relief that parts[1] of the third respondent’s (“adjudicator”) amended[2] adjudicator’s decision[3] made on 26 February 2021 are affected by jurisdictional error and void.
  2. [2]
    The amended adjudicator’s decision decided that $493,754.23 was the adjudicated amount[4] of the progress payment[5] claimed by the payment claim given[6] by the first respondent (“contractor”) to the principal. 
  3. [3]
    Of the amended adjudicated amount, the principal challenges the amounts decided for a number of items identified as follows (with some text omitted):

Variation

Description

Claimed

Approved

Decided

CV1

Latent Condition…

$28,330.50

$28,330.50

$28,330.50

CV2

Traffic – External…

$19,819.01

$19,819.01

$19,819.01

CV2A

Roadworks Design…

$14,850.00

$14,850.00

$14,850.00

CV6

Sewer Connection

$51,852.01

$51,852.01

$51,852.01

CV9

Water and Storm Water…

$25,300.00

$25,300.00

$25,300.00

CV11

Tiling and Floor Variations

$645.70

$645.70

$645.70

CV12

IFC Drawings…

$4,895.00

$4,895.00

$4,895.00

CV13

AC Condensers t roof (sic)

$4,246.00

$4,246.00

$4,246.00

CV20

Box Culvert

$27,764.39

$0.00

$8,450.60

CV27

Set off contra Liquidated Damages applied

$189,540.00

 

$157,464.00

  1. [4]
    The principal submits that the amounts for each of those variations was affected by jurisdictional error and that the amended adjudicator’s decision should be declared void to that extent and the amended adjudicated amount should be reduced by their total amount, $315,852.82, plus GST on that amount.
  2. [5]
    When making the decision about the adjudication application, the adjudicator also decided that the adjudicator’s fees and expenses were to be wholly paid by the principal[7] in the amount of $86,605.75.  The principal also applies for an order that the contractor pay the proportion of 50 per cent of the adjudicator’s fees and expenses.

Previously paid amounts

  1. [6]
    The amended adjudicator’s decision was made upon the contractor’s payment claim identified as payment claim 12, given by the contractor to the principal on 6 October 2020.  The progress payment claimed was $1,010,691.77 (including GST).  It is convenient to identify its component parts exclusive of GST as that is how the analysis of those parts was made in payment claim 12, the principal’s response to payment claim 12 made by the payment schedule given to the contractor,[8] the contractor’s adjudication application,[9]  the contractor’s submissions relevant to the adjudication application,[10] the principal’s adjudication response to the adjudication application[11] and the amended adjudicator’s decision.
  2. [7]
    Accordingly, exclusive of GST, the amount stated in payment claim 12 of the progress payment the contractor claimed was payable by the principal[12] totalled $918,810.70 comprising:
    1. (a)
      $84,611.72 for construction work included in the original contractual scope of works; and
    2. (b)
      $751,675.33 for variations that were construction work under the contract, including a “variation” identified as CV27.
  3. [8]
    A table of individual variations included in payment claim 12 identified the challenged variation line items as follows (with some text omitted):

Variation Number

Description

Progress Amount

Previously Paid

Difference

CV1

Latent Condition… asbestos

28,330.50

228,330.50

0.00

CV2

Trafflec…

19,819.01

19,819.01

0.00

CV2A

Roadworks Design…

14,850.00

14,850.00

0.00

CV6

Sewer connection…

51,852.01

51,852.01

0.00

CV9

Water & Stormwater…

25,300.00

25,300.00

0.00

CV11

Tiling & Flooring…

645.70

645.70

0.00

CV12

IFC Drawings…

4,895.00

4,895.00

0.00

CV13

AC Condesors (sic)…

4,246.00

4,246.00

0.00

CV20

Latent Condition - Culvert

36,214.99

8,450.60

27,764.39

  1. [9]
    Each of the variations identified as CV1, CV2, CV2A, CV6, CV9, CV11, CV12 and CV13 (“zero amount variations”) was a variation that had been claimed, approved and paid by the principal to the contractor under the construction contract between them before payment claim 12 was made.
  2. [10]
    The column headed “Difference” in the table of individual variations stated the amounts that the contractor claimed in payment claim 12 for each variation or line item.  It totalled to the amount of $751,675.33.  The table of individual variations listed all the project variations, including the zero amount variations.  It showed that no amount was claimed for the zero amount variations.
  3. [11]
    Despite that, the amended adjudicator’s decision included the full amount of each of those variations in the amended adjudicated amount to be paid by the principal to the contractor, as set out above.
  4. [12]
    As to CV20, the table of individual variations included in payment claim 12 listed that variation, showed the original amount of the variation that had been claimed by the contractor ($36,214.99), that it had been submitted under the construction contract and had been paid to the extent of $8,450.60.  That left the amount claimed for it by payment claim 12 of $27,764.39.
  5. [13]
    The original adjudicator’s decision included $8,450.60 in the adjudicated amount for CV20.  The amended adjudicated amount under the amended adjudicator’s decision still included that amount although the reasons[13] for the amended adjudicator’s decision suggest that the adjudicator intended to delete that amount as a clerical mistake or error arising from an accidental slip or omission.[14]
  6. [14]
    The principal submits that the amounts included in the amended adjudicator’s decision and the amended adjudicated amount are affected by jurisdictional error because they were decided in contravention of the requirements that the adjudicator must consider the payment claim, the payment schedule and the submissions of the parties.[15]  Alternatively, the principal submits the jurisdictional error was that the adjudicator contravened the requirement to give reasons for the amended adjudicator’s decision,[16] or failed to accord procedural fairness to the principal by failing to give it an opportunity to make submissions in relation to these amounts.
  7. [15]
    In oral argument, I questioned whether there was an excess of jurisdiction raised by the facts relating to the previously paid variations, as follows. 
  8. [16]
    In making an adjudicator’s decision, “an adjudicator is to decide… the amount of the progress payment… to be paid”.[17]  The “progress payment” is, relevantly, that to which “a person is entitled… if the person has carried out construction work… under the contract”.[18]  Relevantly to this case, the “amount of a progress payment to which a person is entitled… is… the amount calculated in accordance with the contract”.[19]  The “progress payment… becomes payable” as a matter of timing, “if the contract provides for the matter – on the day on which the payment becomes payable under the contract”.[20] 
  9. [17]
    “A person… who is, or who claims to be, entitled to a progress payment may give a payment claim to the person… who, under the relevant construction contract, is or may be liable to make the payment.”[21]  “A payment claim, for a progress payment, is a written document that… identifies the construction work… to which the progress payment relates” and “states the amount (the claimed amount) of the progress payment that the claimant claims is payable…”[22]
  10. [18]
    If given a payment claim, a respondent who does not pay the amount claimed in the payment claim in full on or before the due date “must respond to the payment claim by giving the claimant a payment schedule”.[23]  “A payment schedule, responding to a payment claim, is a written document that… if the amount proposed to be paid is less than the amount stated in the payment claim – states why… including the respondent’s reasons for withholding any payment…”[24]
  11. [19]
    “A claimant may apply… for adjudication of a payment claim (an adjudication application) if… the amount stated in the payment schedule… is less than the amount stated in the claim.”[25]
  12. [20]
    An appointed adjudicator for the adjudication application “is to decide… the amount of the progress payment, if any, to be paid by the respondent to the claimant (the adjudicated amount)”.[26]
  13. [21]
    Having regard to those provisions, the jurisdiction of the adjudicator is limited to deciding the amount of the progress payment by reference to the amount stated in the payment claim as the amount that the claimant claims.  The adjudicator cannot add other amounts that are not included in the claimed amount.  If an adjudicator does so, in my view, he or she acts in excess of the statutory jurisdiction to decide the adjudication application.
  14. [22]
    In the present case, the amount stated in payment claim 12 as payable by the principal did not include any amount for the zero amount variations.  To that extent, the adjudicator acted in excess of jurisdiction and the amended adjudicator’s decision and the amended adjudicated amount are affected by jurisdictional error.  It follows that the amended adjudicated amount should be reduced by $149,938.22 (plus GST).
  15. [23]
    To that extent, it is unnecessary to consider any of the other grounds submitted by the principal as alternative bases for the conclusion of jurisdictional error. 
  16. [24]
    As to CV20, the position is different.  There was no excess of jurisdiction in the adjudicator considering the amount of $27,764.39 that was included in the amount of the progress payment that the contractor claimed was payable by the principal in the claimed amount for payment claim 12.
  17. [25]
    In the original adjudicator’s decision, the adjudicator allowed $8,450.60 against the contractor’s claimed amount of $27,764.39, but the reasons did not identify any reason for doing so.  The principal made a submission to the adjudicator that the amount was a clerical mistake or an error arising from an accidental slip or omission. The reasons for the amended adjudicator’s decision stated the adjudicator’s intention to delete that amount.  The adjudicator said: “In its request pursuant to CV 20 I have assessed that the [principal’s] submission should be preferred ($0) but appear to have awarded the amount to the [contractor] in the valuation table.  I adjust the Decision accordingly.”
  18. [26]
    But in the result $8,450.60 was not deleted from the adjudicated amount.  That may have been a further clerical error.  But it was not a jurisdictional error.

CV27 and liquidated damages

  1. [27]
    Although it appeared in payment claim 12 as the last item in the table of individual variations and was identified as “CV27” (presumably an abbreviation for contract variation 27), CV27 was not a claim for a variation at all.  It is necessary to identify the facts to explain its true character.
  2. [28]
    The construction contract contained provisions creating a time for reaching practical completion of the contract works, provisions for the extension of the time for practical completion in the event of variations directed by the principal or the Superintendent that delayed the works, and for the payment by the contractor of liquidated damages for failure to achieve practical completion by the due date, as follows:

34 Time and progress

34.1 Progress

The Contractor shall ensure that WUC reaches practical completion by the date for practical completion.

34.2 Notice of delay

A party becoming aware of anything which will probably cause delay to WUC shall promptly give the Superintendent and the other party written notice of that cause and the estimated delay.

34.3 Claim

The Contractor shall be entitled to such extension of time for carrying out WUC (including reaching practical competition) as the Superintendent assesses (‘EOT’), if:

  1. (a)
    The Contractor is or will be delayed in reaching practical completion by a qualifying cause of delay; and
  1. (b)
    The Contractor gives the Superintendent, with 28 days of when the Contractor should reasonably have become aware of that causation occurring, a written claim for an EOT evidencing the facts of causation and of the delay to WUC (including extent).

If further delay results from a qualifying cause of delay evidenced in a claim under paragraph (b) of this subclause, the Contractor shall claim an EOT for such delay by promptly giving the Superintendent a written claim evidencing the facts of that delay.

34.4 Assessment

When both non-qualifying and qualifying causes of delay overlap, the Superintendent shall apportion the resulting delay to WUC according to the respective causes’ contribution.

In assessing each EOT the Superintendent shall disregard questions of whether:

  1. (a)
    WUC can nevertheless reach practical completion without an EOT; or
  1. (b)
    the Contractor can accelerate,

but shall have regard to what prevention and mitigation of the delay has not been effected by the Contractor.

34.5 Extension of time

Within 15 business days after receiving the Contractor’s claim for an EOT, the Superintendent shall give to the Contractor and the Principal a written direction evidencing the EOT so assessed. If the Superintendent does not do so, there shall be a deemed assessment and direction for an EOT as claimed.

Notwithstanding that the Contractor is not entitled to or has not claimed an EOT, the Superintendent may at any time and from time to time before issuing the final certificate direct an EOT.

34.6 Practical completion

The Contractor shall give the Superintendent at least 14 days written notice of the date upon which the Contractor anticipates that practical completion will be reached.

When the Contractor is of the opinion that practical completion has been reached, the Contractor shall in writing request the Superintendent to issue a certificate of practical completion. Within 10 business days after receiving the request, the Superintendent shall give the Contractor and the Principal either a certificate of practical completion evidencing the date of practical completion or written reasons for not doing so.

If the Superintendent is of the opinion that practical completion has been reached, the Superintendent may issue a certificate of practical completion even though no request has been made.

34.7 Liquidated damages

If WUC does not reach practical completion by the date for practical completion, the Superintendent shall certify, as due and payable to the Principal, liquidated damages in Item 29 for every day after the date for practical completion to and including the earliest of the date of practical completion or termination of the Contract or the Principal taking WUC out of the hands of the Contractor.

If an EOT is directed after the Contractor has paid or the Principal has set off liquidated damages, the Principal shall forthwith repay to the Contractor such of those liquidated damages as represent the days the subject of the EOT.

The parties agree that liquidated damages shall constitute the sole remedy for the Principal in respect of late completion by the Contractor.

34.8 Bonus for early practical completion

If the date of practical completion is earlier that the date for practical completion the Superintendent shall certify as due and payable to the Contractor the bonus in Item 30(a) for every day after the date of practical completion to and including the date for practical completion.

The Contractor hereby waives that part of a bonus exceeding the Item 30(b) amount.

34.9 Delay damages

For every day the subject of an EOT for a compensable cause and for which the Contractor gives the Superintendent a claim for delay damages pursuant to subclause 41.1, damages certified by the Superintendent under subclause 41.3 shall be due and payable to the Contractor.”

  1. [29]
    Before payment claim 12 was made, the agreed date for practical completion had passed.  The Superintendent had determined that the contractor had failed to reach practical completion by the date for practical completion for a period of 130 days to that determination.  Liquidated damages for delay were payable at the rate of $1,458 per day for every day of such delay, and the principal deducted (described in cl 34.7 as “set off”) the amount of $189,540 as liquidated damages for delay from sums otherwise payable to the contractor.
  2. [30]
    By payment claim 12, the contractor included the amount of $189,540 in the amount of the progress payment that the contractor claimed was payable by the principal for CV27.  The item was described as “Claim for repayment of liquidated damages wrongly set off against Niclin”.
  3. [31]
    The contractual basis of the claimed amount for CV27 arose from the contractor’s claimed entitlements to extensions of time associated with three other variation claims included in payment claim 12, as follows (“variations with EOT”):

EOT Number

Variation Number

EOT Claimed

01

CV4A

92

02

CV25

9

03

CV26

24

  1. [32]
    The adjudicator dealt with the contractor’s claims that it was entitled to extensions of time for the claimed variations with EOT, as follows:

EOT Number

Variation Number

Adjudicator’s Decision

01

CV4A

92

02

CV25

0

03

CV26

16

  1. [33]
    Accordingly, the adjudicator considered CV27 having regard to the extensions of time he had assessed, totalling 108 days.  Starting with the 130 days of delay that had been used to deduct liquidated damages from sums previously payable to the contractor, the adjudicator decided that the period of 130 days for that calculation should be reduced by 108 days, resulting in a credit or payment due to the contractor of the amount of $157,464 previously deducted for that number of days, being 108 days at $1,458 per day.
  2. [34]
    The principal submitted that the adjudicator’s decision of the amount of $157,464 was affected by jurisdictional error.  There were a number of grounds advanced, but the chief of them was that the adjudicator “did not identify a basis of any contractual entitlement for the ‘set off’ which he found [the contractor] was entitled to for variation CV 27” nor “the basis upon which [the contractor] was entitled to effectively receive the benefit of the extensions of time determined by him as both an additional amount paid to it, and in reducing the amount of liquidated damages that he decided [the principal] was entitled to set off”.
  3. [35]
    In putting matters that way, the principal apparently misunderstood both what the contractor was saying was the basis for the amount claimed for CV27 and what the adjudicator was saying in allowing part of that amount in the amended adjudicator’s decision.
  4. [36]
    The contractor had described CV27 as “Claim for repayment of liquidated damages wrongly set off against Niclin”.   Once it is appreciated that the amount of $189,540 claimed was the amount of liquidated damages previously deducted by the principal from amounts otherwise payable to the contractor, it is clear that the “set off against Niclin” was that deduction for liquidated damages and that the contractor was claiming payment on the basis it was “wrongly” deducted.  There was no “set off” that the contractor was seeking to set up against any amount due from the principal to the contractor at all.
  5. [37]
    As well, the adjudicator’s statement that the amount of $157,464 he decided was to be paid by the principal for CV27 as a “Set off contra Liquidated Damages applied”, in context, was also a reference to the principal’s prior deduction of liquidated damages of $189,540.  That is, the adjudicator decided the amount should be paid by the principal to the contractor as a reduction from the amount previously deducted by the principal.  The adjudicator’s choice of terminology may have been a bit confusing, but the substance of what he was deciding was not.
  6. [38]
    In doing so, having decided that extensions of time of 108 days should be allowed for the variations with EOT, the adjudicator was following the operation of cl 34.7 of the construction contract, that “[i]f an EOT is directed after the… Principal has set off liquidated damages, the Principal shall forthwith repay to the Contractor such of those liquidated damages as represent the days the subject of the EOT.”
  7. [39]
    It was not contended by the principal that it was beyond the adjudicator’s jurisdiction to do that.  In any event, it seems to have been accepted in prior cases that an adjudicator’s powers to decide an adjudication application for construction work consisting of variations may reach to deciding an entitlement to an extension of time that would affect account entitlements in respect of liquidated damages.[27]
  8. [40]
    It is necessary to say something more about the principal’s submission that the adjudicator’s decision was affected by jurisdictional error because the adjudicator determined that both an additional payment was due to the contractor for CV27 and that the further amount of liquidated damages claimed by the principal in the payment schedule and submissions should be reduced.
  9. [41]
    In the payment schedule and submissions, the principal claimed that an amount of $223,074 should be deducted from any amount to which the contractor was otherwise entitled under the payment claim because there were 153 days of delay in reaching practical completion from the date of practical completion.
  10. [42]
    In considering that claim, the adjudicator first adjusted it downwards by 7 days (for a period he described as days after practical completion was reached) to 146 days.  He then reduced the period of 146 days by deducting the 108 days he had decided should have been allowed as extensions of time for the variations with EOT, leaving the balance of 38 days of delay in reaching practical completion from the extended date for practical completion.  The adjudicator accordingly allowed $55,404 as a deduction from the progress payment to be made under progress claim 12, as a “set off” of liquidated damages for 38 days at the rate of $1458 per day.
  11. [43]
    In doing this, I do consider that the adjudicator made an error of double allowance.  But it was not one that disfavoured the principal.  The calculation of the deduction of liquidated damages for 38 days’ delay represented liquidated damages for the whole of the delay from the adjudicator’s view of the adjusted date for practical completion.  However, it will be recalled that in deciding CV27, the adjudicator allowed 108 days against the earlier deduction of liquidated damages for 130 days, leaving 22 of that earlier deduction unreversed.  When calculating the amount of any liquidated damages for delay for the principal’s claim to a reduction of the progress payment, the adjudicator should have deducted from his result of 38 days’ delay the period of 22 days’ delay that had not been reversed out of the earlier deduction on account of liquidated damages.  In the result, the principal has had the benefit of reductions for liquidated damages for those 22 days of delay twice.
  12. [44]
    An alternative ground of challenge to the decision of CV27 and liquidated damages based on failure to accord procedural fairness to the principal was abandoned in oral argument, having regard to the contents of the payment schedule and the adjudication response or submissions.
  13. [45]
    It follows, in my view, that the principal has not established any jurisdictional error in the adjudicator’s decision for either CV27 or the deduction of liquidated damages, whether the alleged error is based on failure to consider the provisions of the construction contract,[28] or a failure to give reasons for the decision.[29] 

Proportion of the adjudicator’s fees and expenses

  1. [46]
    The amended adjudicator’s decision decided that the principal was to pay 100 per cent of the adjudicator’s fees and expenses.
  2. [47]
    The principal submits that it follows as of course that should the court determine that the challenged parts of the amended adjudicator’s decision are affected by jurisdictional error that the contractor should be ordered to pay 50 per cent of the adjudicator’s fees and expenses.
  3. [48]
    The reasons for the adjudicator’s decision as to the proportion of the adjudicator’s fees and expenses that should be paid by the principal were briefly stated as follows:

“The [principal] included a series of issues that related to perceptions and checking that caused significant increases in the time required to process the Adjudication Application. The [principal] also increased the workload by refusing to supply on a request pursuant to s 84(2)(b) of the BIFA to supply a digital copy of the Adjudication Response. The [principal] submitted in a reply to my request that I had no entitlement to make such a request as there was nothing in the BIFA which permitted me to ask such a question. I do not agree. Supplying me with such an electronic copy is not service of an application, is a written submission and would allow greater efficiency in processing the application. The contents of the application together with the failure to provide the Response in a more useable form were major factors in increasing the cost of the decision and were persuasive in my decision in relation to adjudication fees and charges.”

  1. [49]
    None of those matters is affected by a decision that the amended adjudicator’s decision is affected by jurisdictional error to the extent that is found above and that the amended adjudicated amount is accordingly reduced by $149,938.22 (plus GST).
  2. [50]
    Neither the finding that part of an adjudicator’s decision is affected by jurisdictional error, nor the severance of the adjudicator’s decision to allow the part of the decision not affected by jurisdictional error to remain binding[30] engages any separate power in the court to review a decision of an adjudicator as to the proportion of the adjudicator’s fees and expenses to be paid by a claimant or respondent.[31]  The principal did not identify any legal basis founded in any enactment for the court to make the order it sought that the contractor should be ordered to pay 50 per cent of the adjudicator’s fees and expenses.
  3. [51]
    But in this case, it is unnecessary to decide whether the court has power to make such an order.  Even if there is some source of discretionary power to do so, there is no occasion for it to be exercised in this case, having regard to the adjudicator’s reasons for making the decision as to the proportion of the adjudicator’s fees and expenses to be paid by the principal and the principal’s partial success in this proceeding.  No order should be made interfering with the adjudicator’s decision as to the proportion of the adjudicator’s fees and expenses to be paid by the principal.

Footnotes

[1] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 101(4).

[2] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 89.

[3] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 88.

[4] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 88(1)(a).

[5] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 70.

[6] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 75.

[7] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 96.

[8] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 76.

[9] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 79.

[10] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 79(2)(e).

[11] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 82.

[12] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 68.

[13] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 88(5)(b).

[14] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 89(1).

[15] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 88(2)(c) and (d).

[16] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 88(5)(b).

[17] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 88(1).

[18] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 70.

[19] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 71(a).

[20] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 73(1)(a).

[21] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 75(1).

[22] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 68(1).

[23] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 76.

[24] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 69(c).

[25] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 79(1)(b).

[26] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 88(1)(a).

[27] Hervey Bay (JV) Pty Ltd v Civil Mining and Construction Pty Ltd & Ors [2008] QSC 58, [32].

[28] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 88(2)(b).

[29] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 88(5)(b).

[30] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 101(4).

[31] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 96(1)(a).

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Editorial Notes

  • Published Case Name:

    LKB Group Pty Ltd v Niclin Constructions Pty Ltd & Ors

  • Shortened Case Name:

    LKB Group Pty Ltd v Niclin Constructions Pty Ltd

  • MNC:

    [2021] QSC 93

  • Court:

    QSC

  • Judge(s):

    Jackson J

  • Date:

    11 May 2021

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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