Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QSC
  3. 2023
  4. Karam Group Pty Ltd v HCA Queensland Pty Ltd - [2023] QSC 212

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  •  Notable Unreported Decision

Karam Group Pty Ltd v HCA Queensland Pty Ltd[2023] QSC 212

Karam Group Pty Ltd v HCA Queensland Pty Ltd[2023] QSC 212

SUPREME COURT OF QUEENSLAND

CITATION:

Karam Group Pty Ltd ATF The Karam (No. 1) Family Trust v HCA Queensland Pty Ltd & Ors [2023] QSC 212

PARTIES:

KARAM GROUP PTY LTD ATF THE KARAM (NO. 1) FAMILY TRUST (ACN 512 325 943)

(applicant)

v

HCA QUEENSLAND PTY LTD ACN 629 849 814

(first respondent)

PETER THOMAS SARLOS (REGISTERED ADJUDICATOR NUMBER J1158721)

(second respondent)

ADJUDICATION REGISTRAR, QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(third respondent)

FILE NO/S:

11131/23

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

20 September 2023

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2023

JUDGE:

Muir J

ORDER:

  1. The application for interlocutory orders in paragraph 1 of the originating application filed on 6 September 2023 is dismissed.
  2. Orders 1 and 2 of the Order of 12 September 2023 are discharged.
  3. I will hear the parties as to costs

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – GENERALLY – where the applicant seeks an interlocutory order restraining the second respondent in his capacity as the appointed adjudicator under a written contract from giving a decision in response to an adjudication application – where the applicant seeks an interlocutory application restraining the second respondent from accepting any further appointment as an adjudicator in response to any adjudication application made by the first respondent – where the applicant alleges the adjudicator is subject to apprehended  bias towards it – where the onus is on the applicant to establish that there is a serious question to be tried on the issue of apprehended bias – whether a fair-minded lay observer might reasonably apprehend that the adjudicator might not bring an impartial mind to the resolution of the question the adjudicator is required to decide – where the onus is on the applicant to establish that the balance of convenience favours making an order granting the interlocutory order – whether the balance of convenience favours the preservation of the status quo.

CONTRACTS – BULIDNG, ENGINEERING AND RELATED CONTRACTS – REUNUMERATION – STATUATORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the first respondent served a copy of payment claim on the applicant for works completed under a contract – where the superintendent issued the applicant with a payment certificate in response to the serving of payment claim – where an adjudicator was appointed to determine the adjudication application – where the adjudicator issued further requests from the applicant and the first respondent – whether these  requests might lead a fair-minded lay observer to reasonably apprehend that the adjudicator might not bring an impartial mind or open mind to his required determination

Building and Construction Industry Payments Act 2004 (Qld) s 7

Building and Construction Industry Security of Payments Act 1999 (NSW)

Building Industry Fairness (Security of Payment) Act 2017 (Qld) ss 3(1), 70, 79(1)(b), 82(2)(b), 84(1)(a), 84(2)(b), 85, 86, 88(1), 88(5), 88(7), 90, 91, 92, 93, 200

Queensland Building and Construction Act 1991 (Qld)

Abu Dhabi National Tanker Co v Product Star Shipping Ltd [1993] 1 Lloyd's LR 397

Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd [2020] QSC 133

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57

Brodyn Pty Ltd v Davenport (2004) NSWLR 421

Brooks v Upjohn Co (1998) 85 FCR 469

Charisteas v Charisteas (2021) 273 CLR 289

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76

Cross v Leeds Corporation (1902) Hudson’s BC (4th Edn, Vol 2) 339

Dixon v South Australian Railways Commissioner (1923) 34 CLR 71

Ebner v Official Trustee in Bankruptcy (2005) 205 CLR 337

Gindy v Capital Lawyers Pty Ltd [2022] ACTCA 66

Goodwin Street Developments Pty Ltd v D&D Builders Pty Ltd [2022] NSWSC 624

Hervey Bay (JV) Pty Ltd v Civil Mining & Construction (2008) QSC 58

Isbester v Knox City Council (2015) 255 CLR 135

John Holland Pty Ltd v TAC Pacific Ltd [2009] QSC 205

Johnson v Johnson (2001) 201 CLR 488

Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424

Karam Group Pty Ltd v HCA Queensland Pty Ltd [2022] QSC 290

McGovern v Ku-ring-gai Council (2008) NSWLR 504

Northbuild Construction Sunshine Coast Pty Ltd v Beyfield Pty Ltd [2015] 1 Qd R 463

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15

Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2019) 2 QR 271

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4

R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546

Re J.R.L; Ex parte C.J.L. (1986) 161 CLR 342

Reiby Street Apartments Pty Ltd v Winterton Constructions Pty Ltd [2005] NSWSC 545

RG Neller Building Pty Ltd v Ainsworth [2009] 1 Qd R 390

S & M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358

Salini-Impreglio SPA v Francis [2020] WASC 72

Stacks Managed Investments Ltd v Tolteca Pty Ltd [2015] QSC 234

Vakauta v Kelly (1989) 167 CLR 568

COUNSEL:

A C Stumer for the applicant

S B Whitten for the first respondent

SOLICITORS:

Hopgood Ganim for the applicant

CDI Lawyers for the first respondent

Introduction

  1. [1]
    The applicant (Karam) seeks interlocutory orders restraining the second respondent (in his capacity as the appointed Adjudicator under a written contract dated 21 July 2020 between Karam as the principal and the first respondent (HCA), as the contractor), from:
    1. giving Karam, HCA or the third respondent (the Registrar) any adjudicator’s decision under Chapter 3 Part 4 of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (the BIF Act) in response to HCA’s adjudication application dated 29 May 2023; and
    2. accepting any further appointment as an adjudicator under Chapter 3 Part 4 of the BIF Act in response to any adjudication application made by HCA under the contract.[1]
  2. [2]
    Interim orders to this effect were granted on an urgent basis on Friday 8 September 2023 and the hearing of the interlocutory application (which was contested by the first respondent)[2] was adjourned to the applications list and heard by me on the afternoon of 12 September.[3] The application for final relief is listed for a one day hearing on 27 September 2023.
  3. [3]
    The nub of Karam’s case is that certain statements made by the Adjudicator to Karam and HCA in a written request for information to them, during the course of the adjudication process, give rise to a reasonable apprehension of bias against Karam; and that the Adjudicator should be restrained from delivering and communicating any decision affecting the rights of the parties.
  4. [4]
    In order to obtain the interlocutory order it seeks, the onus is on Karam to establish two things:[4]
    1. First: There is a serious question to be tried in respect of the apprehended bias of the Adjudicator; and
    2. Secondly: The balance of convenience favours the making of the order.
  5. [5]
    For the reasons that follow, I am not satisfied that Karam has met its onus under either limb.

Uncontroversial relevant background

  1. [6]
    The contract provided for HCA to design and construct the Maasra Apartments, a mixed-use development of residential apartments and commercial space located in the inner Brisbane suburb of Coorparoo. The evidence of Mr Anthony Karam, a director of Karam, is that HCA is close to achieving practical completion under the contract and that most of the remaining work relates to rectification of defects and preparation of as-built drawings.
  2. [7]
    The most recent payment certificate issued by the Superintendent under the contract reveals the adjusted contract sum is $41,413,876.27 (excl. GST) with the cost to complete (a figure Mr Karam agrees with) to be $282,412.15 (excl .GST). 
  3. [8]
    On 27 March 2023, HCA served a copy of payment claim number 32 in the sum of $15,041,371.45 (excl. GST) on Karam for works completed under the contract.  The Superintendent then issued Karam with a payment certificate in the sum of $23,811.78 (excl. GST) in response.
  4. [9]
    It was in this context, that HCA lodged its adjudication application [on 29 May 2023] in respect of the payment claim and payment certificate.  The amount sought in the adjudication application is $4,687,564.91 (excl. GST).
  5. [10]
    On 2 June 2023, the Adjudicator was appointed to determine the adjudication application.
  6. [11]
    On 11 July 2023, the solicitors for Karam served its adjudication response on the Adjudicator.[5] Various requests for extensions of time were then made by the Adjudicator (and approved by both parties) with the adjudication decision now due to be delivered on 27 September 2023.
  7. [12]
    On 9 August 2023, the Adjudicator issued his first request for further submissions from Karam and HCA pursuant to s 84(2)(b) of the BIF Act.[6] It is this request that underpins Karam’s claim of a reasonable apprehension of bias. 
  8. [13]
    On 14 August 2023, HCA and Karam submitted their written submissions in  response to the first request and on 17 August, they both forwarded further responses to each other’s submissions to the Adjudicator. 
  9. [14]
    On 17 August 2023, the solicitors for Karam also sent a letter to the solicitors for HCA, setting out why they considered the Adjudicator’s request gave rise to a reasonable apprehension of bias and requested that HCA withdraw its adjudicated application.[7] HCA refused to do so.
  10. [15]
    On 5 September 2023, the Adjudicator issued a second request to the parties for further submissions. Karam submitted this further request exacerbates its concern that the Adjudicator might not decide the adjudication application on its merits.
  11. [16]
    HCA (again) declined to withdraw its adjudication application, so on 6 September 2023, Karam filed the originating application seeking interlocutory and final relief.
  12. [17]
    HCA complained that the Adjudicator was not asked to recuse himself prior to the application being made. But I accept that it was both necessary and appropriate for the application to have proceeded as it has for the following two reasons:
  1.  First: There is no express power under the BIF Act for an adjudicator to decide such an application; and
  1.  Secondly: The authorities establish that where a party considers there is an apprehension of bias, that party is not permitted to postpone an application that the decision-maker be disqualified until after a decision in order to first determine whether the judgment is favourable.[8] 
  1. [18]
    The application of the principles of apprehension of bias depend upon a number of factors including the nature of the decision and its statutory context.[9] Before turning to those principles it is therefore important to understand the statutory framework within which the Adjudicator operates.

Statutory framework of the BIF Act

  1. [19]
    The main purpose of the BIF Act is stated to be “to help people working in the building and construction industry in being  paid for the work they do.”[10] This purpose is similar to its predecessor, the Building and Construction Industry Payments Act 2004 (Qld).  The objects of the Payments Act included ensuring that a person was entitled to receive and was able to recover progress payments if the person undertakes to carry out construction work or to supply related goods and services under a construction contract.[11]
  2. [20]
    The relevant provisions of Chapter 3, Part 4 of the BIF Act are usefully identified in Karam’s written submissions as follows:[12]
  1.  A claimant may apply to the registrar for adjudication of a payment claim if the amount stated in a payment schedule, given in response to a payment claim is less than the amount stated in the payment claim:           [s 79(1)(b)].
  1.  If the registrar refers an adjudication application for a decision, the adjudicator must, unless the adjudicator has a reasonable excuse, accept or reject the referral within 4 business days after the referral is made, with the acceptance to be made by serving a written notice on the claimant, the respondent and the registrar: [s 88(1) and (5)].
  1.  On accepting a referral of an adjudication application, an  adjudicator is taken to have been appointed to decide the application: [s 88(7)].
  1.  Subject to the time requirements under s 85, an adjudicator must decide the adjudication application as quickly as possible: [s 84(1)(a)].
  1.  For a proceeding conducted to decide an adjudication application, an adjudicator:
  1.  must decide whether he or she has jurisdiction to adjudicate the application and whether the application is frivolous or vexatious: [s 84(2)(a)];
  1.  may ask for further written submissions from either party and must give the other party an opportunity to comment on the submissions: [s 84(2)(b)].
  1.  An adjudicator must decide the adjudication application within the time prescribed by s 85 or within the extended time agreed in writing between the claimant and the respondent under s 86.
  1.  An adjudicator is to decide (s 88(1)):
  1.  the amount of the progress payment, if any, to be paid by the respondent to the claimant;
  1.  the date on which any amount became or becomes payable; and
  1.  the rate of interest payable on any amount.
  1.  In deciding an adjudication application, the adjudicator is to consider the following matters only [s 88 (2)]:
  1.  the provisions of Chapter 3 and to the extent they are relevant the provisions of the Queensland Building and Construction Commission Act 1991, Part 4A;
  1.  the provisions of the relevant construction contract;
  1.  the payment claim to which the application relates, together with all submissions, including relevant documents, that have been properly made by the claimant in support of the claim;
  1.  the payment schedule to which the application relates, together with all submissions, including relevant documents, that have been made by the respondent in support of the schedule;
  1.  the results of any inspection carried out by the adjudicator of any matter to which the claim relates.
  1.  The respondent must pay the adjudicated amount to the claimant on or before the day that is 5 business days after the day on which the adjudicator “gives a copy of the decision to the respondent”: [s 90(2)(a)].
  1.  The registrar is required to give the claimant an adjudication certificate stating (inter alia) the adjudicated amount within 5 business days “after being given the decision”: [s 91(1)].
  1.  If the respondent fails to pay the whole or any part of the adjudicated amount to the claimant as required by s 90, the claimant may give the respondent written notice of the claimant’s intention to suspend carrying out the construction work: [s 92(1)].
  1.  An adjudication certificate may be filed as a judgment debt, and may be enforced in a court of competent jurisdiction: [s 93(1)].
  1. [21]
    There are subtle differences between the two acts which are not relevant to the current application. But it is reasonable to infer (as I do) from the objects and the provisions identified in paragraph 19 and 20 above, that the BIF Act should be applied in a similar way to the Payments Act.  That is, as Keane JA (as his Honour then was), relevantly observed in RG Neller Building Pty Ltd v Ainsworth [2009] 1 Qd R 390, as follows:
  1. “[39]
    It is evidently the intention of the BCIP Act, and, in particular, s 31 and s 100 to which reference has been made, that the process of adjudication established under that Act should provide a speedy and effective means of ensuring cash flow to builders from the parties with whom they contract, where those parties operate in a commercial, as opposed to a domestic, context. This intention reflects an appreciation on the part of the legislature that an assured cash flow is essential to the commercial survival of builders, and that if a payment the subject of an adjudication is withheld pending the final resolution of the builder’s entitlement to the payment, the builder maybe ruined.
  2. [40]
    The BCIP Act proceeds on the assumption that the interruption of a builder’s cash flow may cause the financial failure of the builder before the rights and wrongs of claim and counterclaim between builder and owner can be finally determined by the courts. On that assumption, the BCIP Act seeks to preserve the cash flow to a builder notwithstanding the risk that the builder might ultimately be required to refund the cash in circumstances where the builder’s financial failure, and inability to repay, could be expected to eventuate. Accordingly, the risk that a builder might not be able to refund moneys ultimately found to be due to a non-residential owner after a successful action by the owner must, I think, be regarded as a risk which, as a matter of policy in the commercial context in which the BCIP Act applies, the legislature has, prima facie at least, assigned to the owner.” [Emphasis added]
  1. [22]
    It is also important to understand an adjudicator’s function as usefully summarised by Bond J (as his honour then was) in Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd [2020] QSC 133 as follows:
  1. “[35]
    …the valid exercise of an adjudicator’s jurisdiction is conditioned on the adjudicator having arrived at his or her conclusion by a process which considers the matters set out in s 88(2) of the Payment Act. But as to this, the following important matters must be noted:
  1.  The valid exercise of an adjudicator’s jurisdiction is not conditioned on the adjudicator reaching what is objectively the correct conclusion on all of the questions of fact or law required by the consideration of the matters set out in s 88(2). Or, to put it another way, there are many errors of fact and law which might be made by an adjudicator which would not be regarded as going to jurisdiction.
  1.  On an application to set aside an adjudicator’s decision for jurisdictional error, the question is not whether the Court would have come to the same conclusion as the adjudicator. Rather, the question is whether the adjudicator arrived at his or her conclusion by a process which failed to consider the matters set out in s 88(2).
  1.  This point was succinctly made in Northbuild Construction Sunshine Coast Pty Ltd v Beyfield Pty Ltd [2015] 1 Qd R 463, 469-470 at [20], where McMurdo J pointed out ….:

‘To determine an application, an adjudicator must identify the relevant terms of the contract upon which the claim is made and then apply the facts, as he or she finds them to be, to those terms upon their proper interpretation. The identification of the terms and the interpretation of those terms are thereby questions which the adjudicator must answer in the exercise of his jurisdiction. It follows that an error in the identification of the terms or in their interpretation will not be a jurisdictional error: [13]

  1.  His Honour distinguished between that sort of error – which was not jurisdictional error – and that which was, in the following passage:[14]

‘However, where it appears that an adjudicator is not meaning to apply the contract, as he or she interprets it, but is instead allowing the claim upon some other basis, the position is different, because the adjudicator is thereby misunderstanding the scope of the adjudicator’s jurisdiction.’

  1.  Adjudicators under the Payment Act do not have to get the answer right, but if it is demonstrated that they have not gone about their task by carrying out the active process of intellectual engagement with the issues and the submissions before them that the Payment Act requires, then they will have fallen into jurisdictional error because they will not have done the very thing s 88(2) of the Payment Act required them to do.”[15]

[Emphasis added].

  1. [23]
    In undertaking their role, an adjudicator must afford the parties “the necessary level of procedural fairness.[16] A denial of procedural fairness or natural justice may be a jurisdictional error that would justify a declaration that an adjudicator’s decision is void.[17]  In John Holland Pty Ltd v TAC Pacific Ltd [2009] QSC 205 Applegarth J referred to the need for the denial of natural justice to be substantial in the sense that it is material to the adjudicator’s decision. In that sense, he identified the court’s concern to be “with the practical effect of the alleged denial of natural justice.”[18]
  2. [24]
    It follows from these decisions that the Adjudicator must afford the parties substantial natural justice or procedural fairness. 
  3. [25]
    With these principles in mind, I now turn to the legal principles concerning the concept of apprehended bias.

Apprehended Bias

  1. [26]
    As discussed under the previous heading, the authorities recognise that an adjudicator is obliged to comply substantially with the rules of procedural fairness and natural justice. This includes an obligation not to be subject to actual or apprehended bias.[19]
  2. [27]
    The guiding principle as to what constitutes apprehended bias emerges from the following passages of the High Court’s decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337:[20]
  1. “[6]
    …[T]he governing principle is that…a [decision maker] is disqualified if a fair-minded lay observer might reasonably apprehend that the [decision maker] might not bring an impartial mind to the resolution of the question the [decision maker] is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement that reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
  2. [7]
    The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a [decision maker] might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the [decision maker] will in fact approach the matter. The question of one of possibility (real and not remote), not probability…” [Emphasis added]
  1. [28]
    The principles laid down in Ebner were recently affirmed by Kiefel CJ and Gageler J in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 as follows:[21]

“The criterion is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The “double might” serves to emphasise that the criterion is concerned with “possibility (real and not remote), not probability”.

[Emphasis added]

  1. [29]
    The fair minded lay observer is assumed to be reasonable. But ought not be attributed the same level of sophistication which may be enjoyed by judges, by lawyers, or by the parties involved. Rather, such an observer is assumed to have appropriate knowledge of the particular case, including the nature of the decision and the circumstances surrounding the conduct about which there is complaint.[22]
  2. [30]
    Although the test of apprehended bias is less stringent than that of actual bias, apprehended bias must still be “firmly established”.[23] In a case of alleged bias by pre-judgment (such as the present) it must be firmly established that the fair-minded lay observer might reasonably apprehend that the decision maker might not be open to persuasion.[24]
  3. [31]
    In CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, Kiefel CJ and Gageler J summarised the accepted three step test for assessment of apprehended bias as follows:[25]
    1. First: The “identification of the factor which it is postulated might have led the [decision maker] to have decided the [issue] otherwise than on an independent and impartial evaluation of the merits”;
    2. Second: The “articulation of how that factor might have led the [decision maker] to have decided the [issue] otherwise than on an independent and impartial evaluation of the merits.”
    3. Third:  The assessment of “whether the fair-minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred.”

Analysis

  1. [32]
    The applicant submitted that the first request contains “seven elements” which give rise to a reasonable apprehension of bias. These elements (or complaints) can be summarised generally as follows: 
    1. Element one: The first request raises an “irrelevant” allegation that amendments to the standard form of the AS4000-1997 Amended General Conditions of Contract are not included in the contract inferring that Karam has engaged in misleading conduct such that the fair-minded lay observer might reasonably apprehend that the Adjudicator might not bring an impartial mind to his required determination and might be partial to HCA over Karam.
    2. Element two:  The first request criticises clause 21.1 of the contract and requests submissions on whether this clause is a “contracting out” clause within the meaning of s 200 of the BIF Act such that  the fair-minded lay observer may apprehend that the Adjudicator might have reached a final decision on this issue  and might no longer be open to persuasion.
    3. Element three: Again, in the context of clause 21.1, the first request makes comments that a fair-minded lay observer might reasonably apprehend mean that the Adjudicator has formed a concluded view that the Superintendent failed to act on the merits of the payment claim and instead acted solely in the interests of Karam.
    4. Element four:  The first request criticises the language of clause 21.2 of the contract and suggests that it is also an attempt to “contract out” of the provisions of the BIF Act in a manner inconsistent with s 200 of the BIF Act, again  suggesting that the fair-minded lay observer may apprehend that the Adjudicator might have reached a final decision on this issue and might no longer be open to persuasion.
    5. Element five: The first request refers to the decision in Hervey Bay (JV) Pty Ltd v Civil Mining and Construction Pty Ltd [2008] QSC 58, in which a clause including the words “absolute discretion” was addressed and then seeks to distinguish this decision on the ground that the adjudication in question was not in respect of “construction work”. Karam submitted that this suggests that the fair-minded lay observer might reasonably apprehend that the Adjudicator is advocating for a position contrary to the interests of Karam and favourable to HCA and therefore might not decide the application on its merits. 
    6. Element six:  The first request appears to express a concluded view that clauses 21.1 and 21.2 interfere with the rights of HCA to be paid and are therefore inconsistent with s 200 of the BIF Act. And it does so in such expression and in such a way that the fair-minded lay observer might reasonably apprehend that the Adjudicator has formed a concluded view on these issues and might not bring an open mind to his determination.
    7. Element seven:  The first request repeats itself by suggesting that the contract is bias in favour of Karam; and the use of pejorative language might cause the fair-minded lay observer to reasonably apprehend that the Adjudicator has formed a concluded view on the question and is not open to persuasion. Karam also submitted that the second request (for a chronology and further documents relating to the contract) supports the conclusion that the fair-minded lay observer might reasonably apprehend that the Adjudicator might be attempting to find evidence to justify a decision against Karam. 
  2. [33]
    These elements are analysed in turn under their respective headings below (although as will become apparent, there is some overlap in the nature of the complaints). But before doing so, it is instructive to set out the basis in which the first request [containing the elements Karam complains of] was made. That is, as follows:[26]

“Pursuant to the provisions of s 84(2)(b) of the Building Industry Fairness (Security of Payment) Act 2017 (BIFA) I request the parties to consider and comment on the following matters listed below. Parties should respond to this request by no later than 12:00 PM on Monday, 14 August 2023. Each party may reply to the other party by 4:00 PM on Tuesday, 15 August 2023.:.” [Emphasis added]

  1. [34]
    As set out in paragraph 20 above, s 82(2)(b) of the BIF Act allows the Adjudicator to ask for further written submissions from either party and affords the other party an opportunity to comment on those submissions. In the present case, it cannot be overlooked that the request was made to both parties [not just to one] and consistently with the section, allowed each party the opportunity to consider and respond to the other parties’ submissions. At first blush therefore the preamble text informs the request and comments of the Adjudicator such that the document when read as a whole does not lead to a conclusion that a firm and final conclusion has been reached by him. To the contrary. The Adjudicator has requested that the parties consider and comment on a number of matters that concern him – most importantly the provision of the relevant contract [as set out in s 88(2)(b)]. This is exactly what happened. On 14 August, Karam sent a nine page response to the first request (with lengthy attachments). Even if it is wrongly rejected, there is nothing to suggest that this response will not be fairly considered by the Adjudicator. His second request does not change that. The Adjudicator’s approach is consistent with his role which includes identifying the relevant terms of the contract and applying the facts, as he finds them to be, to those terms upon their proper interpretation.[27]

Element one

  1. [35]
    The first request identifies differences between the standard form and the contract in respect of the duties of the Superintendent, before going on to state as follows:[28]

“a.  Neither set of adjudication submissions made included any advice that the Copyright of the author, i.e. Standards Australia has been modified to the extent that the contract used is bespoke contract that is based on the original AS Contract.

b.  The Copyright licence granted by Standards Australia requires that the changes to the standard contract be notified to contractors. (The Copyright to McInnes Wilson Lawyers notified in small print at the bottom of the pages in only a partial recognition of the recognition that Standards Australia requires).

c.  As presented, the contract potentially a misrepresentation of the authority and veracity of the document to a point in which any reliance on the contract based on the fact that it is identified as an AS 4000 contract can readily be construed as misleading.” [Emphasis added]

  1. [36]
    The first request then qualifies these comments as follows:[29]

“3.  In making the above statement I recognise that were set out in the contract presume that both parties are aware and agree to accept the conditions set out in the Contract. That presumes that contracting parties at the time to review formal contract that they enter into. The pressures of time in a construction contract and the costs involved in reviewing and negotiating a detail contract create circumstances where a contracting parties reliance on a standard contract can result in a lack of clarity and in ambiguity. In this matter the representation of what is in fact a bespoke contract as an AS4000 can be misleading and result in ambiguities simply by the fact of reliance on the reputation of Standards Australia.”  [Emphasis added].

  1. [37]
    I reject Karam’s submission that it emerges from Element one that the fair-minded lay observer might reasonably apprehend that the Adjudicator might not bring an impartial mind to his determination of the adjudication application or that the fair-minded lay observer might reasonably apprehend that the Adjudicator might be partial to HCA over Karam for the following five reasons:
    1. First: Karam’s submission that it is implicit that an allegation of misleading conduct is directed at Karam misconstrues the request – which invites comments on the idea that the contract which was executed by both parties on apparently equal terms is “potentially” misleading on its face. Objectively speaking, the Adjudicator is simply raising a concern that, to the extent the contract is identified as an AS4000 Contract, it is not that – as it has apparently been modified. In making this observation, the Adjudicator expressly recognises that he has presumed that both parties were aware and agreed to the conditions set out in the contract. It follows that the applicant’s submission that all the responsibility is being placed at Karam’s feet by this request is a subjective one and not reasonably open on an objective consideration of the request in the circumstances it was made.
    2. Secondly: Karam’s submission overlook the matters identified in paragraph 34 above and that Karam has provided a detailed response with its perspective on 17 August. 
    3. Thirdly: Karam pointed to the fact that neither Karam nor HCA raised these matters as an issue and that the Adjudicator has taken it upon himself to raise them. But this submission overlooks that the BIF Act expressly provides that in deciding the adjudication application, the Adjudicator is to consider the relevant provisions of the contract. And, as Bond J relevantly observed in Acciona, the adjudicator must carry out an “active process of intellectual engagement with the issues” and the submissions.[30] Those submissions, in my view, include the submissions in response to any request for clarification about the relevant contractual provisions made by the Adjudicator.
    4. Fourthly:  Karam submitted that the Adjudicator does not explain the relevance of the allegation of misleading conduct. But again, this submission subjectively misconstrues the comment as one of “misleading conduct” by Karam when at its highest, it is an observation that the contract on its face appears to be misleading. But even if it is accepted that such an allegation is cast towards Karam (and I do not) it does not follow (as Karam contended) that the fair-minded lay observer might reasonably apprehend that: the Adjudicator might not bring an impartial mind to the determination of the adjudication application; or that he might be partial to HCA over Karam.  Even expressions of strong views against the case of either party have been held not to be seen as a refusal to consider a matter on its merits.  For example in  Cross v Leeds Corporation (1902) Hudson’s BC (4th Edn, Vol 2) 339 Lord Collins MR relevantly observed as follows [in a case involving an engineer acting as an arbitrator who had described the contractor’s claim as ‘outrageous’]:[31]

“A strong man forming an opinion and acting upon it, and, if need be, expressing it, does not negative his righty…to act as arbitrator afterwards. You have got to get something more than a strong opinion strongly expressed before you have something equivalent to a refusal to consider the matter on its merits at all.”

  1.  Fifthly:  It is not possible to ascertain the subjective implication by Karam [that the Adjudicator has alleged misleading conduct on its part] has any logical connection between that factor and the apprehended deviation from a determination of the adjudication application fairly and on its merits. As Karam correctly identified, it must be firmly established that the fair-minded lay observer might reasonably apprehend that the decision-maker might not be open to persuasion.  In the present case, the Adjudicator has asked for and received submissions on the issue and the fact that he has made these inquiries of both parties does not lead to any firm conclusion that he may not be open to persuasion.

Element two

  1. [38]
    Karam’s  second complaint emerges from the fact that the first request only referred to a “partial quote” from clause 21.1 and omitted the critical part (as emphasised in the full extract) as follows:[32]

The Principal shall ensure that at all times there is a Superintendent, and that the Superintendent:

  1. fulfils all aspects of its role and functions; and
  2. for the purposes of subclause 42.3 assesses the cost to complete WUC, reasonably and in good faith.

In fulfilling its valuation, assessment and certification functions under the Contract, the parties acknowledge and agree that the Superintendent acts as an independent certifier and not as agent of the Principal. However, the Superintendent is not obliged to act impartially or have regard to the interests of both parties, and may have regard solely to the interests of the Principal, when deciding whether to exercise, or in exercising, any discretion provided to it by the Contract. [Emphasis added]

  1. [39]
    The Adjudicator’s Request states:

There can be only one purpose for such a measure and that is to ensure the discretion of whether or not the claimant is paid for the works that have been carried out lies with either the Superintendent or the Principal. As this matter is subject to the BIFA such a power appears to be an act of “contracting out” thereby invoking the provisions of s 200 of that Act. [Emphasis added].

  1. [40]
    Karam points to the Adjudicator’s observation “of only one purpose” as a fundamentally misconceived statement, because: it fails to recognise the express requirement, that when exercising its roles and functions, including the certification function under clause 42.3, the Superintendent is obliged to act reasonably and in good faith; and that under clause 21.1, it is only when deciding to exercise or when exercising a discretion, that the Superintendent is not obliged to act impartially and may have regard solely to the interests of the Principal.
  2. [41]
    I reject Karam’s submission that it emerges from Element two that the fair-minded lay observer might reasonably apprehend that the Adjudicator might not bring an impartial mind to his determination of the adjudication application or that the fair-minded lay observer might reasonably apprehend that the Adjudicator might be partial to HCA over Karam, for the following five reasons:
    1. First: Even accepting these observations are wrong (and I am not necessarily satisfied they are) – they are a mere error which does not amount to a failure to make a decision or give rise to apprehended bias. 
    2. Secondly: The adjudicator’s statement must be considered objectively including in light of the matters articulated in paragraph 34 above.
    3. Thirdly:  For the reasons discussed in paragraph 37(c) above, there  is no force to the point that the Adjudicator raised this issue of his own volition (as opposed to one of the parties raising it first).
    4. Fourthly: The comment by the Adjudicator that “[t]here can only be one purpose for such a measure” must be seen in the context in which it was made, namely in a request inviting consideration and comment; and (again) with the observation of Lord Collins in Cross (referred to in paragraph 37(d) above)  to the effect that it takes more than a strong opinion before a conclusion that there is a refusal to consider the matter on its merits can be drawn. 
    5. Fifthly: It is not possible to logically connect the subjective implication that is alleged by Karam to emerge from Element two with a sufficient likelihood of a deviation by the Adjudicator from a determination of the adjudication application other than fairly and on its merits.

Element three

  1. [42]
    The third complaint is made in the context of  the Adjudicator’s comment about clause 21.1 as follows:[33]

“The second sentence directly contradicts the requirements of the first requiring the actions of the Superintendent to have regard solely for the interests of the Principal when deciding whether to exercise, or in exercising, any description [sic] provided to it by the contract. In carrying out his duties to certify the WUC the Superintendent appears to have complied with the requirement in the second sentence, particularly in relation to variations, delays etc.” [Emphasis added]

  1. [43]
    I reject Karam’s submission that the fair-minded lay observer might reasonably apprehend that the Adjudicator has formed a concluded view that the Superintendent failed to act on the merits of the payment claim and instead acted solely in the interests of Karam and, in turn, the fair-minded lay observer might reasonably apprehend that the Adjudicator might have closed his mind to the merits of the arguments and might decide the adjudication application otherwise than fairly and in accordance with the merits, for the following four reasons:
    1. First: The Adjudicator’s comments must be considered objectively including in light of the matters articulated in paragraph 34 above;
    2. Secondly: The use of language such as “might” in circumstances where the Adjudicator has invited submissions is not consistent with such a finding;
    3. Thirdly: For the reasons discussed in paragraph 37(c) above, there is no force to the point that the Adjudicator raised this issue of his own volition (as opposed to one of the parties raising it first);
    4. Fourthly: It is not possible to logically connect the subjective implication that is alleged by Karam to emerge from Element three with a sufficient likelihood of a deviation by the Adjudicator from a determination of the adjudication application other than fairly and on its merits.

Element four

  1. [44]
    There is some overlap between the Adjudicator’s alleged criticism of clause 21.1 as discussed in Element two and Karam’s fourth complaint arising from the  Adjudicator’s comments about clause 21.2 as follows:[34]

“Clause 21.2 relates to the discretion available to the Superintendent.

  1. a.
    Both sub paragraphs ((a) & (b)) include the words ‘absolute discretion' in establishing the right of both the Principal and the Superintendent in exercising their discretion free from challenge. Courts have found that it was appropriate to limit the meaning of ‘absolute discretion' to ensure that its meaning was constrained from acting unreasonably. In Abu Dhabi National Tanker Co v Product Star Shipping Ltd [1993] 1 Lloyd's LR 397 it was held that: -

"... Where A and B contract with each other to confer a discretion on A, that does not render B subject to A's uninhibited whim. In my judgment, the authorities show that not only must the discretion be exercised honestly and in good faith, but, having regard to the provisions of the contract by which it is conferred, it must not be exercised arbitrarily, capriciously or unreasonably..."

  1. b.
    Depending on the circumstances a discretion under the terms of contract can be subject to an implied limitation. In the present Adjudication cl 21.1 is aimed at limiting the Superintendent's discretion in favour of the Respondent. The limitations of both cl 21.1 and cl 21.2 impose restrictions on the Claimant's Right to progress payment (BIFA s 70) by allowing the Superintendent to exercise a discretion: -
  1. i.
    to not act with impartiality;
  2. ii.
    to disregard the interests of the Claimant;
  3. iii.
    to act on only behalf of the interests of the Respondent

when exercising a discretion under the Contract. This bias is reinforced in the final paragraph of the sub-clause which allows the Respondent to take over the responsibilities of the Superintendent and serve a payment schedule. The meaning of cl 21.1 is reinforced by cl 21.2 which imposes an 'absolute discretion' in both the Respondent and the Superintendent with all rights of the Claimant seemingly done away with.

Both cl 21.1 and cl 21.2 can be seen to contract out of the BIFA and thus to invoke the provisions of s 200 of the BIFA.

The effect of the exercise of discretions impose contractual conditions which can be seen as Contracting Out (BIFA s 200) as they: -

  1. i.
    appear to allow the Respondent to arbitrarily deny the right of the Claimant to be paid for work carried out;
  2. ii.
    the words used can nullify the role of the Superintendent as '...as an independent certifier and not as an agent of the principal...' introducing an ambiguity and an arbitrariness into the terms and conditions.”
  1. [45]
    Karam again refers to the Adjudicator’s interpretation of the contract to be misconceived for the same reasons as set out in paragraph 40 above.
  2. [46]
    I reject Karam’s submission that it emerges from Element four that the fair-minded lay observer might reasonably apprehend that the Adjudicator might not bring an impartial mind to his determination of the adjudication application or that the fair-minded lay observer might reasonably apprehend that the Adjudicator might be partial to HCA over Karam, for the reasons set out in paragraphs 41(a), (b) and (c) above; and because it is not possible to logically connect the subjective implication that is alleged by Karam to emerge from Element four with a sufficient likelihood of a deviation by the Adjudicator from a determination of the adjudication application other than fairly and on its merits.

Element five

  1. [47]
    Karam submits that regardless of whether the Adjudicators attempt to distinguish the decision in Hervey Bay is correct or not (Karam submits it is not), the Adjudicator’s attempt to do so might cause a fair-minded lay observer to reasonably apprehend that the Adjudicator has engaged in advocating for a position contrary to the interests of Karam and favourable to HCA and otherwise than in accordance with its merits. But I reject this submission for the reasons set out in paragraphs 41(a), (b) and (c) above; and (again) because it is not possible to logically connect the subjective implication that is alleged by Karam to emerge from Element five with a sufficient likelihood of a deviation by the Adjudicator from a fair determination of the adjudication.

Element six

  1. [48]
    The sixth complaint by Karam is underpinned by the first request returning to the question of compatibility of clauses 21.1 and 21.2 with s 70 of the BIF Act as follows:[35]
  1. “5.
    …The effect of both such requirements is to place the Claimant in the position that his right to be paid for the completed is subject to the whim of the Superintendent potentially acting on the directions of the Respondent or whose role can be replace [sic] by the Respondent – i.e placing the Respondent in effective control (Goodwin Street Developments Pty Ltd v D&D Builders Pty Ltd [2022] NSWSC 624).
  2. 6.
    The provisions of cl 21.2 emphasise the ‘absolute discretion’ (granted under the contract) to the exclusion of any consideration of the rights of the Claimant whether or not a claim or elements of a claim should be paid or extension of time granted or if a latent defect existed.
  3. 7.
    The net effect of both clauses is to potentially undermine the right of the Claimant to be paid. Whether or not it does to the question of fact that needs to be determined in each individual case.”
  1. [49]
    I reject that a fair-minded lay observer might reasonably apprehend that the Adjudicator has formed a concluded view on this issue, or that the fair-minded lay observer might apprehend the Adjudicator might not bring an open mind to the issue for the reasons set out in paragraphs 41 (a), (b) and (c) above and for the following two additional reasons:
    1. First: The use of language such as “appear to have the effect” [at the beginning of paragraph 8] and the concluding reference to the net effect “potentially” undermining the right of the claimant objectively speak of an open mind.
    2. Secondly: It is not possible to logically connect the subjective implication that is alleged by Karam to emerge from Element six with a sufficient likelihood of a deviation by the Adjudicator from a fair determination of the adjudication. 

Element seven

  1. [50]
    Karam’s seventh complaint relies on the Adjudicator’s observations that the “duties of the superintendent seems to include an obligation to act in a manner that is normally expected of a superintendent, but subject to the normality being overridden by an imposition of obligations to act with bias in favour of the respondent when exercising a discretion”. Karam points to this being a reiteration of earlier misconceived propositions and that the repetition, combined with the pejorative language, might cause the fair-minded lay observer reasonably to apprehend that the Adjudicator has formed a concluded view on the question and is not open to persuasion. 
  2. [51]
    Karam also submitted that the second request set out as follows, exacerbates the reasonable apprehension of bias:[36]

“…I request the parties provide me with a copy of the marked-up version of the amended Australian Standard AS 4000 Contract. The parties are also requested to provide chronological information detailing the service of relevant tender documents, copies of the marked-up version and the date in which it was served and on the date on which the tenders were finalised.”

  1. [52]
    I reject that either of the complaints emerging from Element seven have the effect contended for by Karam (in paragraph 50 above) for the reasons set out in paragraph 41(b) and (c) above, and for the following additional three reasons:
    1. First:  The power to request the documents identified in the second request is arguably within the express ambit of s 88(2)(e) or otherwise impliedly necessary for the Adjudicator to carry out his role of interpreting the contract on the facts.
    2. Secondly: Even if the Adjudicator is wrong in his approach it does not follow that such an error gives rise to apprehended bias in this case. 
    3. Thirdly: It is not possible to logically connect the subjective implication that is alleged by Karam to emerge from Element seven with a sufficient likelihood of a deviation by the Adjudicator from a determination of the adjudication application other than fairly and on its merits.

Summary of conclusions emerging from the analysis of the Seven elements

  1. [53]
    Overall, I am not satisfied on an objective analysis of the seven elements (whether considered in combination or alone), give rise to a finding of apprehended bias on the part of the Adjudicator (against Karam), for the following reasons:
    1. First: A number of the complaints are, in substance, an argument based on Karam’s subjective perception of the manner in which the Adjudicator is intending to interpret the contract in relation to the powers of the Superintendent under clause 21.1 and clause 21.2 of the Contract – and a perception that that interpretation is in error.  The identification of the terms and the interpretation of those terms are questions which the Adjudicator must answer in the exercise of his jurisdiction.  An error in the identification of those terms will not be a jurisdictional error and, as the authorities discussed under the previous headings establish, mere error does not give rise to a failure to make a decision or give rise to apprehended bias.[37]
    2. Secondly: Karam’s contentions that the first request refers to the provisions being an attempt to contract out of the BIF Act must be seen in the context of the Adjudicator seeking submissions on the question of the interpretation of those clauses in the context of an amended AS4000 Contract.
    3. Thirdly: I am not satisfied that the language used by the Adjudicator in raising the various issues for response by the parties necessarily means he has made a  a rigid and final determination about those matters (even if it is accepted that some of his views or comments may have been strongly held at the time of the request). The fact he has raised concerns and asked for submissions and comments, does not support a finding that his requests are in any way indicative of a refusal to consider a particular matter on its merits.
    4. Fourthly: Karam has not established that any perceived apprehension of bias is material to the decision that the Adjudicator must make in this case – that is the valuation of the claim. 
    5. Fifthly: All of the complaints stem from potential concerns and queries raised by the Adjudicator in specific terms and about which he sought the parties comments and views. Raising these specific issues and giving the parties the opportunity to provide submissions in response in the way he has, is not only consistent with the Adjudicator’s legislative role, but stands as a hallmark of procedural fairness. 

Conclusion – no serious question to be tried

  1. [54]
    In order to establish that there is a serious question to be tried, an applicant need not “show that it is more probable than not that at trial the [applicant] will succeed; it is sufficient that the [applicant] show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.”[38] For the reasons discussed under the heading “Analysis” above, I am not satisfied that Karam has overcome this burden.
  2. [55]
    I therefore find that there is no serious question to be tried.  Regardless of this finding,  it is prudent to address the issue of the balance of convenience.

Balance of convenience

  1. [56]
    Karam submitted that the balance of convenience favours the interim orders being made (effectively preserving the status quo) because the terms of those orders will not prevent the Adjudicator from making a decisions within the time required by s 85 and s 86 of the BIF Act but only from giving his decision to the parties.[39] In other words, the Adjudicator can make a decision within the time provided by these sections by completing the written decision and then refuse to communicate (or give) the decision to the parties until the adjudicator’s fees and expenses are paid. This will then avoid the consequences that flow from an Adjudicator giving a decision which relevantly include Karam’s obligation under s 90(2)(a) of the BIF Act to pay HCA any adjudicated amount.[40]
  2. [57]
    Karam points to the significant prejudice it will suffer if the interim orders are not made including:[41]
    1. an inability to pay the amount of $4,687,564.71 (excl. GST) sought by HCA within 5 business days;
    2. the need to sell assets, including apartments, which Karam had intended to hold in order to obtain future cash flow; and
    3. the likelihood that any sale would be at an undervalue due to the urgency.
  3. [58]
    On the other hand, HCA submitted that the balance of convenience favours allowing the Adjudicator to perform his statutory function unimpeded so that there is no further delay in HCA’s payment claim being determined and any payment being made. 
  4. [59]
    I am satisfied in the exercise of my discretion that the balance of convenience weighs in favour of HCA for the following four reasons:
    1. First: The evidence from Mr Karam about prejudice is rather vague and raises more questions than answers. For example:
      1. (i)
        Mr Karam’s evidence is that the Karam Group holds assets within the Maasra Apartments Project of a combined value of around $35M with a current loan of around $10M to Westpac. The payment claim was made in March 2023, yet Mr Karam has not deposed to any other assets within the Karam Group through which finance could be sourced to pay any adjudicated amount nor does he depose to any efforts made to refinance or to source alternative finance other than from Westpac;
      2. (ii)
        Mr Karam’s evidence is that the Project is close to Practical Completion and that Karma has sold all but nine of the apartments. Little, if any weight can be given to Mr Karam’s speculative, broad and unsubstantiated assertion that any sale of the remaining nine apartments would have to be at an undervalue.  Given the time frames, Karam has had ample notice of the payment claim, and of the real potential that a substantial payment would be required at some point in the second half of 2023;
      3. (iii)
        It is reasonable to infer (as I do), that the timeframe for payment of any adjudicated amount within five due was well known to Karam but it has failed to adduce any evidence of attempts to secure alternate finance or to sell assets in the interim, to ensure there is an adequate cash reserve to meet any obligation it may have to pay an adjudicated amount;
      4. (iv)
        It is also not apparent how Karam intends to or has the capacity to meet any undertaking as to damages upon interlocutory orders being granted;
      5. (v)
        It is reasonable  to infer (as I do), on the state of the evidence, that if interim order are made and payment to HCA is delayed, all of the nine apartments will be sold – and given the Karam is a trustee company, there is a consequential and real risk that any adjudication decision requiring payment may not be met.
    2. Secondly: I accept the evidence from the solicitor for  HCA (and as a matter of commons sense) that HCA requires prompt payment of the adjudicated amount (if successful) as these funds will help facilitate cashflow and payment to workers and subcontractors engaged.[42]
    3. Thirdly: Given the statutory framework of the BIF Act as outlined under that heading above, the Adjudicator should be allowed to perform his statutory functions and to determine and communicate the decision. If Karam is aggrieved by the adjudicated decision it can then seek to challenge it in the usual way, which may include requiring payment of the adjudicated amount (if any) into Court or to HCA, pending the outcome of that challenge.
    4. Fourthly: Whilst there is a dearth of cogent evidence as to the financial  position of HCA and Karam, it is reasonable to infer (as I do) on the evidence as it is, that Karam runs a lesser risk of non-recovery from HCA should it ultimately succeed in having any adjudication declared void or has to claw monies back in other proceedings as the BIF Act contemplates.

Orders

  1. [60]
    I therefore order as follows:
    1. The application for interlocutory orders in paragraph 1 of the originating application filed on 6 September 2023 is dismissed.
    2. Orders 1 and 2 of the Order of 12 September 2023 are discharged.
  2. [61]
    I will hear the parties on costs.

Footnotes

[1] An originating application  seeking this relief on both an interlocutory basis (with the usual undertaking as to damages) and final relief in the same form was filed on 6 September 2023.

[2] The second respondent did not appear.

[3] The Interim Orders were unopposed by HCA and made by Bradley J without a determination of the merits. I then reserved my decision and extended the interim injunction until further order of the Court.

[4] Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 68 [19] (Gleeson CJ and Crennan J) and at 82 [65] (Gummow and Hayne JJ).  See also Stacks Managed Investments Ltd v Tolteca Pty Ltd [2015] QSC 234 at page 5 (Bond J as his Honour then was).

[5] A copy of this response was served on HCA on 15 August.

[6] Adjudicator’s Request for Further Information in QBCC 2303273, marked for identification “B”.

[7] This letter was not sent to the adjudicator.

[8] Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2019) 2 QR 271 at [62] per Sofronoff P.

[9] Isbester v Knox City Council (2015) 255 CLR 135 at [23] per Keifel, Bell, Keane and Nettle JJ.

[10] BIF Act [s 3(1)].

[11] Payments Act [s 7].

[12] Outline of argument for the applicant at para 26.

[13] Footnotes omitted.

[14] At page 770 at [30]; full reference omitted.

[15] Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd [2020] QSC 133 at [35].

[16] Approved by Bond J (as his honour then was) in Acciona at [41] with reference White JA’s description in Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd [2012] 1 Qd R 52.

[17] Acciona at [23] and [92]. 

[18] John Holland Pty Ltd v TAC Pacific Ltd [2009] QSC 205 at [40].

[19] See Salini-Impreglio SPA v Francis [2020] WASC 72 at [301]-[328] (Archer J) (construing the Construction Contracts Act 2004 (WA)); Reiby Street Apartments Pty Ltd v Winterton Constructions Pty Ltd [2005] NSWSC 545 at [22]-[29] (Macready M) (construing the role of an adjudicator under the Building and Construction Industry Security of Payments Act 1999 (NSW)). See also Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 at [57] (discussing natural justice generally in the context of the Building and Construction Industry Security of Payment Act 1999 (NSW)). 

[20] At 344-345 at [6]-[7] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[21] At [37].

[22] Vakauta v Kelly (1989) 167 CLR 568 at 585 (Toohey J, with whom, at 570, Brennan, Deane and Gaudron JJ generally agreed), referring with approval to the reasons of Kirby P in S & M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358 at 375-6; Johnson v Johnson (2001) 201 CLR 488 at 508 [53] (Kirby J); Brooks v Upjohn Co (1998) 85 FCR 469 at 477 per Beaumont, Carr and Branson JJ);  Isbester at [23] per Keifel, Bell, Keane and Nettle JJ.

[23] Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 at [100] (Weinberg J), proceeding in reliance upon: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553 (Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ); Re J.R.L; Ex parte C.J.L. (1986) 161 CLR 342 at 352 (Mason J). 

[24] Vakauta v Kelly (1989) 167 CLR 568 at 585 (Toohey J, with whom, at 570, Brennan, Deane and Gaudron JJ generally agreed), referring with approval to the reasons of Kirby P in S & M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358 at 375-6; Johnson v Johnson (2001) 201 CLR 488 at 508 [53] (Kirby J); Brooks v Upjohn Co (1998) 85 FCR 469 at 477 (Beaumont, Carr and Branson JJ). 

[25] CNY17 at 88 [21]. See also Ebner at 345 [7]-[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ, with whom Callinan J agreed at 396 [182]); QYFM at [38] (Kiefel CJ and Gageler J); Charisteas v Charisteas (2021) 273 CLR 289 at 296-7 [11]. 

[26] First paragraph of the Adjudicator’s Request.

[27] As discussed in paragraph 22 of these Reasons.

[28] Adjudicator’s Request, page 1 paragraph 2.

[29] Adjudicator’s Request, page 1 paragraph 3.

[30] Acciona at [35(e)].

[31] At 342; See also Dixon v South Australian Railways Commissioner (1923) 34 CLR 71 at 104-105 per Higgins J.

[32] Adjudication Request, at page 2.

[33] Adjudicator’s Request, page 2 paragraph 4.

[34] Adjudicator’s Request, pages 2 and 3, paragraph 5.

[35] Adjudicator’s Request, pages 4 and 5 paragraphs 5, 6 and 7.

[36] The second request is marked for identification ‘A’.

[37] As fairly and corrected accepted in the outline of argument for the applicant at [53].

[38] Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 68 [19] (Gleeson CJ and Crennan J agreeing) and at 82 [65] (Gummow and Hayne JJ).

[39] Consistent with the observation of Williams J in Karam Group Pty Ltd v HCA Queensland Pty Ltd [2022] QSC 290 at [79] ; and s 95(7)(d) of the BIF Act.

[40] Other consequences include those under s. 91 [obligation of the registrar to issue an adjudication certificate];  s 92(1) [the right of HCA to give a notice of intention to suspend work]; and s 93(1) [right of HCA to file an adjudication certificate as a judgment debt].

[41] Affidavit of Anthony Karam sworn 6 September 2023.

[42] Affidavit of Jay Andrew Hatten affirmed 12 September 2023 at para 32(m).

Close

Editorial Notes

  • Published Case Name:

    Karam Group Pty Ltd ATF The Karam (No. 1) Family Trust v HCA Queensland Pty Ltd & Ors

  • Shortened Case Name:

    Karam Group Pty Ltd v HCA Queensland Pty Ltd

  • MNC:

    [2023] QSC 212

  • Court:

    QSC

  • Judge(s):

    Muir J

  • Date:

    20 Sep 2023

  • White Star Case:

    Yes

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Abu Dhabi National Tanker Co v Product Star Shipping Ltd [1993] 1 Lloyd's LR 397
2 citations
Jump To
Cite 1 - [1993] 1 Lloyd's LR 397
Cite 2 - [1993] 1 Lloyd's LR 397
Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd(2020) 4 QR 410; [2020] QSC 133
3 citations
Jump To
Cite 1 - [2020] QSC 133
Cite 2 - [2020] QSC 133
Cite 3 - [2020] QSC 133
Australian Broadcasting Corporation v O'Neill (2006 ) 227 CLR 57
3 citations
Jump To
Cite 1 - (2006 ) 227 CLR 57
Cite 2 - (2006 ) 227 CLR 57
Cite 3 - (2006 ) 227 CLR 57
Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSW LR 421
1 citation
Jump To
Cite 1 - (2004) 61 NSW LR 421
Brooks v Upjohn Co (1998) 85 FCR 469
3 citations
Jump To
Cite 1 - (1998) 85 FCR 469
Cite 2 - (1998) 85 FCR 469
Cite 3 - (1998) 85 FCR 469
Charisteas v Charisteas (2021) 273 CLR 289
2 citations
Jump To
Cite 1 - (2021) 273 CLR 289
Cite 2 - (2021) 273 CLR 289
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
2 citations
Jump To
Cite 1 - (2019) 268 CLR 76
Cite 2 - (2019) 268 CLR 76
Cross v Leeds Corporation (1902) Hudson’s BC 4
2 citations
Jump To
Cite 1 - (1902) Hudson’s BC 4
Cite 2 - (1902) Hudson’s BC 4
Dixon v South Australian Railways Commissioner (1923) 34 CLR 71
2 citations
Jump To
Cite 1 - (1923) 34 CLR 71
Cite 2 - (1923) 34 CLR 71
Ebner v Official Trustee [2005] 205 CLR 337
1 citation
Jump To
Cite 1 - [2005] 205 CLR 337
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
1 citation
Jump To
Cite 1 - (2000) 205 CLR 337
Gindy v Capital Lawyers Pty Ltd [2022] ACTCA 66
1 citation
Jump To
Cite 1 - [2022] ACTCA 66
Goodwin Street Developments Pty Ltd atf Jesmond Unit Trust v DSD Builders Pty Ltd (in liq) [2022] NSWSC 624
2 citations
Jump To
Cite 1 - [2022] NSWSC 624
Cite 2 - [2022] NSWSC 624
Hervey Bay (JV) Pty Ltd v Civil Mining and Construction Pty Ltd [2008] QSC 58
2 citations
Jump To
Cite 1 - [2008] QSC 58
Cite 2 - [2008] QSC 58
Isbester v Knox City Council (2015) 255 CLR 135
2 citations
Jump To
Cite 1 - (2015) 255 CLR 135
Cite 2 - (2015) 255 CLR 135
John Holland Pty Ltd v TAC Pacific Pty Ltd[2010] 1 Qd R 302; [2009] QSC 205
3 citations
Jump To
Cite 1 - [2009] QSC 205
Cite 2 - [2009] QSC 205
Cite 3 - [2009] QSC 205
Johnson v Johnson (2001) 201 CLR 488
3 citations
Jump To
Cite 1 - (2001) 201 CLR 488
Cite 2 - (2001) 201 CLR 488
Cite 3 - (2001) 201 CLR 488
Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424
2 citations
Jump To
Cite 1 - (2002) 76 ALD 424
Cite 2 - (2002) 76 ALD 424
Karam Group Pty Ltd v HCA Queensland Pty Ltd(2022) 13 QR 84; [2022] QSC 290
2 citations
Jump To
Cite 1 - [2022] QSC 290
Cite 2 - [2022] QSC 290
McGovern v Ku-ring-gai Council (2008) NSWLR 504
1 citation
Jump To
Cite 1 - (2008) NSWLR 504
Northbuild Construction Sunshine Coast Pty Ltd v Beyfield Pty Ltd[2015] 1 Qd R 463; [2014] QSC 80
2 citations
Jump To
Cite 1 - [2015] 1 Qd R 463
Cite 2 - [2015] 1 Qd R 463
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd(2019) 2 QR 271; [2019] QCA 184
2 citations
Jump To
Cite 1 - (2019) 2 QR 271
Cite 2 - (2019) 2 QR 271
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4
1 citation
Jump To
Cite 1 - [2018] HCA 4
Quality v Davenport [2004] NSWLR 421
1 citation
Jump To
Cite 1 - [2004] NSWLR 421
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
2 citations
Jump To
Cite 1 - [2023] HCA 15
Cite 2 - [2023] HCA 15
R J Neller Building Pty Ltd v Ainsworth[2009] 1 Qd R 390; [2008] QCA 397
2 citations
Jump To
Cite 1 - [2009] 1 Qd R 390
Cite 2 - [2009] 1 Qd R 390
R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546
2 citations
Jump To
Cite 1 - (1969) 122 CLR 546
Cite 2 - (1969) 122 CLR 546
Re JRL; Ex parte CJL (1986) 161 CLR 342
2 citations
Jump To
Cite 1 - (1986) 161 CLR 342
Cite 2 - (1986) 161 CLR 342
Reiby Street Apartments Pty Ltd v Winterton Constructions Pty Ltd [2005] NSWSC 545
2 citations
Jump To
Cite 1 - [2005] NSWSC 545
Cite 2 - [2005] NSWSC 545
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 N.S.W. L.R. 358
3 citations
Jump To
Cite 1 - (1988) 12 N.S.W. L.R. 358
Cite 2 - (1988) 12 N.S.W. L.R. 358
Cite 3 - (1988) 12 N.S.W. L.R. 358
Salini-Impregilo S.P.A. v Francis [2020] WASC 72
2 citations
Jump To
Cite 1 - [2020] WASC 72
Cite 2 - [2020] WASC 72
Stacks Managed Investments Ltd v Tolteca Pty Ltd [2015] QSC 234
2 citations
Jump To
Cite 1 - [2015] QSC 234
Cite 2 - [2015] QSC 234
Vakuata v Kelly (1989) 167 CLR 568
3 citations
Jump To
Cite 1 - (1989) 167 CLR 568
Cite 2 - (1989) 167 CLR 568
Cite 3 - (1989) 167 CLR 568

Cases Citing

Case NameFull CitationFrequency
Karam Group Pty Ltd v HCA Queensland Pty Ltd(2023) 17 QR 174; [2023] QSC 2454 citations
Karam Group Pty Ltd v HCA Queensland Pty Ltd [No 2] [2024] QSC 741 citation
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.