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John Holland Queensland Pty Ltd v SecureFence Pty Ltd[2024] QSC 290

John Holland Queensland Pty Ltd v SecureFence Pty Ltd[2024] QSC 290

SUPREME COURT OF QUEENSLAND

CITATION:

John Holland Queensland Pty Ltd v SecureFence Pty Ltd [2024] QSC 290

PARTIES:

JOHN HOLLAND QUEENSLAND PTY LTD & SEYMOUR WHYTE CONSTRUCTIONS PTY LTD T/A JOHN HOLLAND SEYMOUR WHYTE JOINT VENTURE

(ABN 47 226 482 705)

(applicants)

v

SECUREFENCE PTY LTD (ACN 634 380 158)

(first respondent)

CHRIS THOMPSON (Registered Adjudicator No. J12822692)

(second respondent)

FILE NO/S:

BS 7870 of 2024

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

6 September 2024

JUDGE:

Cooper J

ORDER:

  1. It is declared that the decision made by the second respondent on 10 June 2024 concerning Adjudication Application Number 2559122 is affected by jurisdictional error and void.
  2. It is ordered that the first respondent pay to the applicants the sum of $241,957.39.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the applicants were parties to a contract pursuant to which they agreed to carry out a construction project – where the applicants subcontracted the first respondent to supply and install fencing for that project – where the first respondent issued a payment claim claiming $298,227.71 (plus GST) and stated that the subcontract was varied by that payment claim to incorporate a document called Annexure E – where the first respondent contended that pursuant to Annexure E, it had an entitlement to claim increased costs which it had incurred in purchasing certain materials – where the first respondent applied for adjudication of the payment claim – where the adjudicator decided that the applicant was liable to pay the first respondent $187,270 (plus GST) – where the applicant applies to have the adjudication decision set aside or declared void for want of jurisdiction, and for orders requiring the first respondent to repay the monies the applicant paid in accordance with the adjudication decision – where the applicant submits that the first respondent’s adjudication application went beyond the bounds of the payment claim because it was based on an external estoppel arising from the parties’ conduct in relation to Annexure E and the adjudicator did not base his decision upon the subcontractor’s entitlements under the subcontract as required by the Building Industry Fairness (Security of Payment) Act 2017 – where the applicant also submits that by making findings with respect to the existence of the estoppel, the adjudicator did not have regard to the applicant’s submission and did not provide any, or adequate, reasons for his decision as required by the Building Industry Fairness (Security of Payment) Act 2017 – whether the adjudicator’s decision is void for jurisdictional error

Building Industry Fairness (Security of Payment) Act 2017, s 65, s 88

Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd (2020) QR 410, cited

Downer Construction (Australia) Pty Ltd v Energy Australia (2007) 69 NSWLR 72, cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited 52

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

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1, cited

COUNSEL:

MD Ambrose KC for the applicants

TW Ambrose for the first respondent

SOLICITORS:

Carter Newell for the applicants

Helix Legal for the first respondent

  1. [1]
    The applicants, as joint venturers, were parties to a contract (Head Contract) with the Department of Transport and Main Roads pursuant to which the applicants agreed to carry out a project involving the upgrade of the Maroochydore Road Interchange on the Bruce Highway (Project).
  1. [2]
    On 23 July 2020, the applicants and the first respondent entered into Standard Subcontract No. 7219-SSA-032 (Subcontract) pursuant to which the first respondent agreed to supply and install fencing for the Project. In these reasons, I refer to the applicants as the Head Contractor and the first respondent as the Subcontractor.
  2. [3]
    On 27 February 2024, the Subcontractor issued a payment claim pursuant to the provisions of the Building Industry Fairness (Security of Payment) Act 2017 (BIF Act), asserting an entitlement to be paid $298,227.71 (plus GST). By that payment claim, the Subcontractor stated that the Subcontract was varied to incorporate a document referred to as Annexure E. The Subcontractor contended that, pursuant to the provisions of Annexure E, it had an entitlement to claim increased costs which it incurred in purchasing certain materials.
  3. [4]
    The Head Contractor delivered a payment schedule which scheduled the amount payable under the payment claim as nil. The Subcontractor then applied for adjudication of the payment claim.
  4. [5]
    On 10 June 2024, the second respondent (Adjudicator) decided that the Head Contractor was liable to pay the Subcontractor $187,270 (plus GST) in respect of the disputed claim (Adjudication Decision).
  5. [6]
    The Head Contractor now applies to have the Adjudication Decision set aside or declared void for want of jurisdiction. It also applies for orders that the Subcontractor repay moneys which the Head Contractor paid in accordance with the Adjudication Decision. It submits that the Adjudication Decision is void for jurisdictional error on two grounds.
  6. [7]
    Under the first ground, the Head Contractor submits that the following matters gave rise to jurisdictional error:
    1. the Subcontractor’s adjudication application, including its submissions to the Adjudicator in support of that application, went beyond the bounds of the payment claim because the Subcontractor changed the nature of the claim from one made under the express terms of the Subcontract to one which was based on an external estoppel arising from the parties’ conduct in relation to Annexure E (which did not form part of the Subcontract);
    2. in so doing, the Subcontractor based its entitlement to payment not upon the “construction contract” (as that term is defined in s 64 of the BIF Act) identified in the payment claim (that being the Subcontract), but upon some “other arrangement” referred to for the first time in the adjudication application and the Adjudicator based his decision upon the Subcontractor’s entitlements under that other arrangement, not under the Subcontract;
    3. in those circumstances, the Adjudicator erred in considering the submissions which the Subcontractor made in its adjudication application because those submissions were not “properly made by the claimant in support of the claim” within the meaning of s 88(2)(c) of the BIF Act;
    4. however the estoppel identified by the Adjudicator might operate, the claim could not have been for payment for work undertaken to be carried out pursuant to a “construction contract” for the purposes of the BIF Act insofar as it related to works which the Subcontractor had already undertaken to carry out and be paid for pursuant to the Subcontract.
  1. [8]
    Under the second ground, the Head Contractor submits that in making findings with respect to the existence of the estoppel, and particularly the mutual assumption adopted by the parties and the asserted detriment suffered by the Subcontractor, the Adjudicator:
    1. did not have regard to the submissions of the Head Contractor as required by s 88(2) of the BIF Act;
    2. did not provide any, or adequate, reasons for his decision as required by a 88(5)(b) of the BIF Act.
  2. [9]
    The Subcontractor submits that the application is an impermissible attempt to relitigate the merits of the case advanced before, and rejected by, the Adjudicator. Further, the Subcontractor submits that the Adjudicator found that the Head Contractor was liable to pay the adjudicated amount for reasons other than those said to involve jurisdictional error such that even if the Adjudicator committed such an error, the ultimate decision about the Subcontractor’s entitlement to payment was not affected by that error.
  3. [10]
    Prior to the hearing of the application, the Adjudicator informed the Registrar that he would adopt the usual course; that is, he would take no part in the proceeding and abide the order of the court.

The statutory scheme created by the BIF Act

  1. [11]
    The main purpose of the BIF Act is to help people working in the building and construction industry in being paid for the work they do – s 3(1). Two means by which the BIF Act seeks to achieve that purpose are: granting an entitlement to progress payments, whether or not the relevant contract makes provision for progress payments – s 3(2)(b); and, establishing a procedure for the making of payment claims, responding to payment claims, the adjudication of disputed payment claims and the recovery of amounts claimed – s 3(2)(c).
  2. [12]
    The procedure established by the BIF Act applies to “construction contracts”. That term is broadly defined in s 64 to mean a contract, agreement or other arrangement under which one party undertakes to carry out construction work for, or to supply related goods and services to, another party.
  3. [13]
    A contractor’s entitlement to progress payments is established by s 70 which provides that, from each reference date under a construction contract, a person is entitled to a progress payment if that person has carried out construction work, or supplied related goods and services, under the contract.
  4. [14]
    Section 75 then provides that a person (thereafter referred to as the claimant) who is, or claims to be, entitled to a progress payment may give a “payment claim” to the person (thereafter referred to as the respondent) who, under the relevant construction contract, is or may be liable to make the payment. Pursuant to s 68, a “payment claim” is a written document that (relevantly): identifies the construction work or related goods and services to which the progress claim relates; states the amount of the progress payment that the claimant claims is payable by the respondent; and, requests payment of the claimed amount.
  1. [15]
    If given a payment claim, the respondent must give the claimant a “payment schedule” within a prescribed period – s 76(1). Pursuant to s 69, a “payment schedule” is a written document that (relevantly): identifies the payment claim to which it responds; states the amount of the payment, if any, that the respondent proposes to make; and, if the amount proposed to be paid is less than the claimed amount, states why the amount proposed to be paid is less, including the respondent’s reasons for withholding any payment.
  2. [16]
    If the amount proposed to be paid in the payment schedule is less than the claimed amount, the claimant may apply for adjudication of the payment claim – s 79(1)(b). The adjudication application must identify the payment claim and the payment schedule to which it relates – s 79(2)(c). It may also include submissions relevant to the application which the claimant chooses to make.
  3. [17]
    The respondent may provide an adjudication response, provided it has previously given the claimant a payment schedule – ss 82(1) and (2). That adjudication response may include submissions relevant to the response that the respondent chooses to make – s 82(3)(c). It may not, however, include any reasons for withholding payment that were not included in the payment schedule given to the claimant – s 82(4).
  4. [18]
    In deciding an adjudication application, an adjudicator is to decide (among other things) the amount of the progress payment, if any, to be paid by the respondent to the claimant – s 88(1).
  5. [19]
    In undertaking that task, the adjudicator is required to consider only the matters set out in s 88(2). The relevant matters for the purposes of this application are: the provisions of the relevant construction contract; the payment claim to which the adjudication application relates, together with all submissions, including relevant documents, that have been properly made by the claimant in support of the claim; and the payment schedule, if any, to which the adjudication application relates, together with all submissions, including relevant documents, that have been properly made by the respondent in support of the schedule – ss 88(2)(b) to (d).
  6. [20]
    The adjudicator is expressly prohibited from considering a reason included in an adjudication response, if the reason is prohibited from being included in the response by s 82 (that is, reasons for withholding payment that were not included in the payment schedule) – s 88(3)(b).

Jurisdictional error in the context of adjudication decisions

  1. [21]
    An adjudicator’s decision may be reviewed for jurisdictional error by the adjudicator in the performance of the adjudication function. The court, if satisfied that jurisdictional error exists, may grant declaratory or injunctive relief based on the invalidity of the adjudication decision that is affected by that error.[1]
  1. [22]
    The valid exercise of an adjudicator’s jurisdiction is conditioned on the adjudicator having reached his or her decision by a process which considers the matters set out in s 88(2) of the BIF Act.[2] On an application to set aside an adjudication decision for jurisdictional error, the question to be resolved is not whether the court considers that the adjudicator reached what it regards to be the correct conclusion on questions raised by a consideration of the matters set out in s 88(2). The question is whether the adjudicator’s decision was the result of a process which failed to consider those matters.[3]
  2. [23]
    On that basis, an error by an adjudicator in identifying or interpreting the relevant terms of the construction contract will not be a jurisdictional error. By contrast, if it appears that an adjudicator is not meaning to apply the contract, as he or she interprets it, but is instead allowing the claim on some other basis there will be jurisdictional error because the adjudicator has misunderstood the scope of his or her jurisdiction.[4]
  3. [24]
    The task of considering the matters set out in s 88(2) requires that an adjudicator undertake an active intellectual engagement with the issues raised and the submissions properly made by the parties about those matters.[5]
  4. [25]
    The valid exercise of an adjudicator’s jurisdiction is also conditioned on the adjudicator:
    1. having reached his or her decision by a process which does not involve consideration of the matters set out in s 88(3);[6]
    2. providing written reasons for the decision in compliance with s 88(5), although a distinction must be drawn between a deficiency of reasons which demonstrates that the adjudicator has not discharged his or her task as contemplated by s 88, and one which does not of itself amount to jurisdictional error.[7]
  5. [26]
    The Subcontractor relies on authorities which state that the legislative context in which adjudication decisions are made, including the strict timeframes imposed by the BIF Act for making such decision and the complexity of the issues raised by some payment claims, means that considerable latitude should be afforded to an adjudicator as to the manner and form of the determination of a claim.[8] Furthermore, the reasons of an adjudicator must be read as a whole and considered fairly, without combing through the words used by the adjudicator with a “fine appellate tooth comb” looking for possible error.[9] I accept the force of those statements, but they do not preclude a finding of jurisdictional error in circumstances where, on a fair reading of the adjudication decision as a whole, the court finds that the conditions for the valid exercise of an adjudicator’s jurisdiction have not been fulfilled.

Relevant provisions of the Subcontract

  1. [27]
    Pursuant to cl 12.1 of the Subcontract, the Head Contractor was required to pay to the Subcontractor the “Subcontract Sum”.
  2. [28]
    The term “Subcontract Sum” was defined in cl 1.1 of the Subcontract relevantly as follows:

“Subcontract Sum means:

…

  1. where the Pricing Schedule includes a schedule of rates, the amount calculated by multiplying the quantity of work performed to which the schedule of rates applies by the rate or price in the schedule of rates for that work,

adjusted from time to time by any additions or deductions required to be made under this Subcontract (and unless stated elsewhere, is not subject to rise and fall in costs) to be paid to the Subcontractor for compliance with its obligations under this Subcontract.”

  1. [29]
    The term “Pricing Schedule” was defined in cl 1.1 to mean the bill of quantities or schedule of prices described in item 4 of Schedule G to the Subcontract. That item included Table G.4.1 which set out the provisional quantities of each item of work and the applicable rate which the Subcontractor was entitled to be paid. Item 4 of Schedule G further provided (by cl 4.2) that the final Subcontract Sum payable under cl 12.1 of the Subcontract was to be calculated by multiplying the quantity of each item of work measured from the construction drawings by the rates listed in Table G.4.1.
  2. [30]
    The parties’ submissions to the Adjudicator also referred to the following provisions of the Subcontract:
    1. cl 2.1(e), by which the Subcontractor acknowledged that it had been:

“… deemed to have assessed all the costs relating to execution of the Works and all the risks and liabilities which it is assuming under this Subcontract and ensured that the Subcontract Sum contains complete allowances for those costs, risks and liabilities; …”

  1. cl 11, which dealt with variations to the works and relevantly provided in cl 11.8 that:
  1. if the Subcontractor believed that a direction given by the Head Contractor involved a change to the works which constituted a variation it was required to: first, within seven days of receiving the direction and before commencing work on the subject matter of the direction give notice to the Head Contractor that it considered the direction constituted a variation; secondly, within a further seven days of giving the first notice, submit a claim to the Head Contractor which provided prescribed information;
  1. the Subcontractor would have no claim against the Head Contractor in relation to works it believed was a variation if it failed to comply with those requirements;
  1. cl 16, which dealt with notice of claims (excepting a number of specified claims) and relevantly provided:
  1. in cl 16.1, that if the Subcontractor wished to make a claim against the Head Contractor in respect of anything arising out of or in connection with the works or the Subcontract it was required to give a written notice of the claim, providing prescribed information, within seven days of the first occurrence of the events on which the claim was based;
  2. in cl 16.3, that if the Subcontractor failed to give notice of a claim in compliance with cl 16.1: the Subcontract Sum would not be adjusted as a result of the claim; and, the Head Contractor would not be liable on the claim.

Discussions about a claim for the increased cost of materials

  1. [31]
    Under the Subcontract, it was contemplated that the Subcontractor would commence the fencing works in or around July 2020. Schedule A of the Subcontract specified that the date for completion was 30 December 2022.
  2. [32]
    In a statutory declaration provided in support of the adjudication application, Ryan Thompson, the managing director of the Subcontractor, stated that the Subcontractor was not directed to commence the works until around February 2021 and then only for relatively short, intermittent periods when the Head Contractor notified the Subcontractor that small areas of the site were ready to be fenced. This was because of delays in the performance of works under the Head Contract which meant the site was not ready for the Subcontractor to perform the fencing works. Mr Thompson stated that the Subcontractor was eventually able to ramp up its work in or around late December 2022 and into January 2023. Between February 2023 and September 2023, the Subcontractor rectified minor defects with the works.
  3. [33]
    Mr Thompson stated that, on 7 September 2022, he had a conversation with Hamish Troutbeck (an onsite engineer and part of the project management team for the Head Contractor) about challenges that parties involved in the Project were facing with the escalating cost of materials. Mr Thompson said that, at the time that conversation occurred, he was considering whether the Subcontractor should make a claim for a variation or some other claim under the Subcontract and he wanted to discuss with Mr Troutbeck whether the Head Contractor would be willing to compensate the Subcontractor for the additional material costs it had incurred in the period since it had tendered for the work and signed the Subcontract.
  4. [34]
    On Mr Thompson’s account, Mr Troutbeck informed him that the Head Contract had been amended by the inclusion of Annexure E to allow the Head Contractor to make a claim for the increased cost of materials. Mr Thompson said that he asked Mr Troutbeck whether other subcontractors had made claims against the Head Contractor for the increased cost of materials and Mr Troutbeck confirmed this was the case, saying words to the effect of:

“Secure Fence will be able to make a claim and I will follow up with the management team to confirm.”

  1. [35]
    On 12 September 2022, John Dussin (a commercial manager for the Head Contractor) sent an email to Mr Troutbeck which attached Annexure E and stated:

“As discussed, this may have been provided to Secure Fence previously however if not they can put together a claim and submit for assessment with the supporting information referred to in the Deed.”

  1. [36]
    Mr Thompson stated that, after he received Annexure E, he had a further discussion with Mr Troutbeck about when the Subcontractor should submit a claim for the increased cost of materials. Mr Troutbeck informed Mr Thompson that the claim should be submitted when the Subcontractor had completed the fencing works and knew the actual costs it had incurred in procuring materials.
  2. [37]
    On 3 March 2023, the Subcontractor submitted a claim to the Head Contractor pursuant to Annexure E for payment of the increased cost of prefabricated steel, cement and fuel between the date of the Subcontractor’s tender and the date the materials were purchased.
  3. [38]
    On 9 March 2023, Michael Partridge (project director for the Head Contractor) wrote to Mr Thompson acknowledging receipt of the Subcontractor’s claim but advising that the information provided with that claim did not comply with the requirements of Annexure E.
  4. [39]
    The Subcontractor provided further information in support of its claim under Annexure E in September 2023. Mr Thompson then engaged in further correspondence with representatives of the Head Contractor about the claim.
  5. [40]
    On 12 December 2023, Mr Dussin sent an email to Mr Thompson stating that the Head Contractor had assessed the claim but determined that, save for a claim of $2,272.37 for the increased cost of fuel, the Subcontractor had not established its claim for the increased cost of materials.
  1. [41]
    On 6 February 2024, the Head Contractor provided a completion notice, payment schedule and final account for the works performed under the Subcontract which (save for the sum of $2,272.37 referred to above) did not allow for the Subcontractor’s claim for the increased cost of materials.

The payment claim

  1. [42]
    On 27 February 2024, the Subcontractor gave the Head Contractor the payment claim by which it:
    1. identified the Subcontract as the contract under which the claim for the increased cost of materials was made;
  1. asserted that the Subcontract was varied by the introduction of Annexure E to allow the Subcontractor to be paid for the increased cost of materials (paragraphs 3 and 5);
  2. maintained that Annexure E (incorrectly identified as Annexure A) formed part of the Subcontract and that the Subcontractor had complied with the requirements of Annexure E (paragraph 9); and
  3. stated that it had been agreed, at least by the parties’ conduct, that Annexure E formed part of the Subcontract (paragraph 11).

The payment schedule

  1. [43]
    On 19 March 2024, the Head Contractor gave the Subcontractor the payment schedule. As previously noted, the scheduled amount the Head Contractor proposed to pay in respect of the payment claim was nil. In setting out the reasons that the scheduled amount was less than the claimed amount, the Head Contractor stated:
    1. Annexure E did not form part of the Subcontract;
    2. the parties did not amend the Subcontract to incorporate Annexure E into it;
    3. the Subcontract provided that the Subcontract Sum is not subject to rise and fall;
    4. under the Subcontract, the Subcontractor was deemed to have ensured that the Subcontract Sum contained complete allowance for all risks, costs and liabilities which it assumed under the Subcontract;
    5. the Subcontractor had no rights under the Subcontract to claim the increased cost of materials;
    6. further, and in any event, the Subcontractor had failed to give the Head Contractor notice of the claim for the increased cost of materials in the manner prescribed by the Subcontract (under cl 16) with the result that the Subcontractor was barred by the Subcontract from making that claim;
    7. even if Annexure E had formed part of the Subcontract:
      1. (i)
        any entitlement under it was discretionary only and not a right under the Subcontract;
      1. (ii)
        the Subcontractor did not comply with the requirements of Annexure E and was time barred from making a claim for the increased cost of materials such that it would have no entitlement to relief in any event.

The Subcontractor’s submissions on the adjudication application

  1. [44]
    On 3 May 2024, the Subcontractor submitted the adjudication application, together with its submissions in support of that application.
  1. [45]
    In the introduction to those submissions the Subcontractor referred to the variation of the Head Contract to provide an entitlement for the Head Contractor to be paid the increased cost of materials pursuant to Annexure E (paragraph 9).
  2. [46]
    In summarising its position, the Subcontractor stated that the parties had agreed the Subcontractor could make a claim for the increased cost of materials pursuant to Annexure E (paragraph 28(b)). Further, it submitted (at paragraph 30) that:

“… [the Head Contractor] should not be allowed to depart from the clear and unequivocal promise that it would pay [the Subcontractor] for the supply costs and revert to its interpretation of the Subcontract as if no assurance has been made by it. There was mutual understanding that [the Subcontractor] had a right to make a claim for supply cost increases which [the Head Contractor] seeks to rescind without reason.”

  1. [47]
    The Subcontractor set out its submissions as to the application of Annexure E in Part 4 of its submissions. It commenced by referring to the basis upon which the Head Contractor rejected the payment claim and asserting that the parties had agreed during the performance of the Subcontract that the Subcontractor was to provide a claim in accordance with Annexure E for assessment by the Head Contractor. It then continued in paragraph 120 as follows:

“[The Subcontractor] submits that in these circumstances (which are discussed in further detail below):

  1. a promissory estoppel or estoppel by conducted [sic] arises, as:
    1. (i)
      [the Head Contractor] has made to [the Subcontractor] a clear and unequivocal promise or assurance in relation to their legal relations, which was intended to be acted on accordingly (i.e. by [the Subcontractor] providing a supply cost claim in accordance with Annexure E and by [the Head Contractor] assessing the claim and certifying the amount of the assessment as due and payable;
    1. (ii)
      [the Subcontractor] took [the Head Contractor] at its word and acted on it to its detriment (i.e. it did not pursue any other contractual claim on the understanding that it would be paid through the Annexure E process); and
    1. (iii)
      [the Head Contractor] cannot afterwards revert to its interpretation of the Subcontract as if no promise or assurance had been made it [sic]; and
  2. an estoppel by convention arises where the parties have made an assumption about the conventional basis of the relationship.”
  1. [48]
    The Subcontractor then set out its submissions on promissory estoppel in paragraphs 121 to 130. Relevantly, in paragraph 122, the Subcontractor stated:

“The doctrine [of promissory estoppel] is commonly invoked where an agreement’s written terms do not reconcile with the contractual assurances made. The remedy is not designed to enforce the promise (as in contract law) but, instead, is moulded to achieve the ‘minimum equity’ required in a case’s particular circumstances. [The Subcontractor] submits that the Adjudicator’s decision should reflect that [the Head Contractor] is not permitted to renege on its post-contractual assurances and agreement concerning payment for the increase in the cost of the Affected Materials.”

  1. [49]
    After addressing the legal principles and the facts which it submitted engaged the doctrine of promissory estoppel, the Subcontractor submitted in paragraph 129 that the Head Contractor was:

“… estopped from rejecting any claim on the basis that … Annexure E did not form part of the parties’ contractual relationship.”

  1. [50]
    In addressing the value of the claim, the Subcontractor submitted in paragraph 152 that the Adjudicator ought to have regard to Annexure E because (for the reasons it had previously submitted):

“… the parties agreed to introduce Annexure E into the parties’ contractual relationship.”

  1. [51]
    Finally, in replying directly to the reasons raised by the Head Contractor in the payment schedule for rejecting the payment claim, the Subcontractor said about Annexure E:

“Annexure E forms part of the Subcontract

  1. 161.
    For the reasons above …, [the Subcontractor] submits that it has established that Annexure E forms part of the parties’ legal relationship and that [the Head Contractor] should be estopped from reneging on its agreement with respect to payment of a claim made under Annexure E.”
  1. [52]
    The Subcontractor also made submissions which referred to the statement in the Subcontract that the Subcontract Sum was not subject to rise and fall “unless stated elsewhere” – see the definition of Subcontract Sum extracted in [28] above.
  2. [53]
    For example, in its submissions on estoppel by convention, the Subcontractor stated in paragraph 136 that there was no express contractual obligation contrary to the assumption of the parties that the Subcontractor could make a claim in accordance with Annexure E, before continuing:

“In fact, the Subcontract expressly contemplates that an entitlement to an increase in costs may be stated elsewhere and if it is stated elsewhere then the Subcontract Sum could be subject to rise and fall. [The Subcontractor] submits that Annexure E provides a statement elsewhere within which the Subcontract Sum is open to any rise and fall in costs.”

  1. [54]
    Further, in its reply to the Head Contractor’s reasons for rejecting the payment claim, the Subcontractor made the following submissions:

“Rise and fall

  1. The Subcontract provides that the Subcontract Sum can be adjusted from time to time by any additions or deductions required to be made under the Subcontract and unless stated elsewhere is not subject to rise and fall in costs.
  2. [The Subcontractor] contends that it is stated elsewhere that the Subcontract Sum can be adjusted for the increase in supply costs. That statement being clearly captured by Annexure E.
  3. The words ‘unless stated elsewhere’ serve a purpose and [the Subcontractor] maintains that the Subcontract should be interpreted to ensure functionality and to operate within the reasonable confines of its language.
  4. Notwithstanding the above, [the Subcontractor] submits that the post- contractual representations and assurances made by [the Head Contractor] has [sic] the effect of waiving any contractual prohibition on rise and fall.

…

  1. 173.
    Accordingly, [the Head Contractor] has waived any restriction of the Subcontract which provided that it was not subject to rise and fall (which in any case is denied by [the Subcontractor] because of the exception noted at paragraph 166 above).”

The Head Contractor’s submissions in the adjudication response

  1. [55]
    On 23 May 2024, the Head Contractor provided its adjudication response which set out its submissions on the adjudication. In those submissions, the Head Contractor asserted that:
    1. Annexure E did not form part of the Subcontract because no consideration was provided to support any agreement to vary the Subcontract and there was no variation by way of deed (paragraphs 88 to 102);
    2. the Subcontractor had no entitlement to claim the increased cost of materials under the provisions of the Subcontract (paragraphs 103 to 117);
    3. the Subcontractor’s argument on rise and fall as set out in paragraphs 165 to 167 of its submissions – extracted at [54] above – should be rejected because the definition of Subcontract Sum should not be interpreted on the basis that, at the time the parties entered into the Subcontract, they intended that the words “unless stated elsewhere” would apply to a document produced almost two years later and which could not have been contemplated when the Subcontract was executed (paragraphs 118 to 121);
    4. the Subcontractor’s argument on waiver set out in paragraphs 168 to 173 of its submissions – extracted in part at [54] above – should be rejected because:
      1. (i)
        the suggested waiver did not come within the scope of cl 17.2 of the Subcontract (paragraph 123);
      1. (ii)
        in any event, there had been no unequivocal waiver by the Head Contractor (paragraphs 124 to 129);
  1. the Subcontractor’s argument on estoppel should be rejected because (among other reasons):
    1. (i)
      the Subcontractor did not suffer any detriment in circumstances where it had no entitlement to claim the increased cost of materials under any provision of the Subcontract and, in any event, it did not make its claim within the times required by the Subcontract (paragraph 132);
    1. (ii)
      the Subcontractor did not abstain from making a claim under the Subcontract by reason of any alleged representation about Annexure E made in September 2022, in circumstances where the majority of the alleged increase in the cost for prefabricated steel was incurred between March 2021 and March 2022 and did not make any claim in respect of those costs (paragraphs 140 to 142).

Adjudication Decision

  1. [56]
    Between paragraphs 102 and 105 of the Adjudication Decision, the Adjudicator identified the Subcontract as the contract under which the Subcontractor had made the adjudication application. He stated it was common ground that the Subcontract comprised the following documents executed on 23 July 2020: General Conditions of Subcontract; Background; Operative Provisions; and Schedules A to Q inclusive. He expressed his satisfaction that the Subcontract was a construction contract pursuant to the definition in s 64 of the BIF Act.
  2. [57]
    The Adjudicator then referred to the following documents and expressed his satisfaction that those documents complied with the requirements of the BIF Act:
    1. the payment claim (paragraphs 106 to 111);
    2. the payment schedule (paragraphs 112 to 116);
    3. the adjudication application (paragraphs 117 to 123);
    4. the adjudication response (paragraphs 124 to 130).
  3. [58]
    Although the Adjudicator was satisfied that the adjudication response complied with the requirements of the BIF Act, he noted that the submissions made by the Head Contractor in that document went beyond the reasons given in the payment schedule for withholding payment and stated that he had not considered these “new reasons” (paragraphs 131 to 134).
  4. [59]
    In paragraph 136, the Adjudicator stated that in making the Adjudication Decision he had regard only to the matters set out in s 88(2)(a) to (e) of the BIF Act. It should be noted that whether that is so is a question of fact to be determined by the court. A statement such as this does not have the effect of shielding from scrutiny such consideration which the Adjudicator gave to particular matters.[10] That is, it does not compel the conclusion that this condition for the valid exercise of the Adjudicator’s jurisdiction was fulfilled.
  1. [60]
    Returning to the Adjudication Decision, the Adjudicator set out the issues in dispute and the Head Contractor’s reasons for withholding payment (paragraphs 137 to 145), before addressing each of the reasons.
  2. [61]
    The first reason was the Head Contractor’s contention that Annexure E did not form part of the Subcontract. After setting out the competing arguments on that issue, the Adjudicator stated as follows:
  1. “151.
    Plainly, even if [the Subcontractor] had sought to submit that a valid agreement to vary the Subcontract existed, it would fail, given that [the Subcontractor] would not be able to point to any form of consideration from it to [the Head Contractor] as a result of any alleged agreement that ‘[the Subcontractor] could make a claim’ under Annexure E.
  1. I am of the view that [the Subcontractor] has not claimed that Annexure E has been included into the Subcontract by way of variation or deed; at [paragraph 161 of the adjudication application submissions] [the Subcontractor] submits that it has established that Annexure E forms part of the parties’ legal relationship (my emphasis) and that [the Head Contractor] should be estopped from reneging on its agreement with respect to payment of a claim made under Annexure E.
  2. At [paragraphs 100 and 101 of the adjudication response submissions] [the Head Contractor] accuses [the Subcontractor] of omitting the very premise upon which the purported agreement with respect to Annexure E was made, including its essential terms and [the Head Contractor] did not simply agree to pay amounts and to abandon entitlements without consideration.
  3. Whilst I can accept that the Subcontract had not been formally varied or amended to incorporate Annexure E, I cannot disregard [the Subcontractor’s] position regarding a ‘legal relationship’ that I discuss and form my opinion of in more detail below.”
  1. [62]
    The Adjudicator then turned to the Head Contractor’s second reason for withholding payment – that the Subcontractor had no entitlement to payment of the claim under any provision of the Subcontract – and considered the Subcontractor’s submissions addressing cll 2.1, 11 and 16. Again, the Adjudicator commenced his consideration by setting out the various competing submissions. Relevantly, in paragraph 161 of the Adjudication Decision, the Adjudicator emphasised part of the following submission by the Subcontractor:

“… when the parties proceeded on the basis that the Supply Costs Claim would be valued under Annexure E, [the Subcontractor] was induced into abstaining from making a claim under clause 11 or clause 16 for that subject matter. At this point, the acknowledgements in clause 2.1 became redundant as the legal relationship between the parties had changed. (my emphasis)”

  1. [63]
    The Adjudicator summarised the parties’ differing positions as follows:
  1. “163.
    The parties do not appear to be applying the same logic to the terms of the Contract, [the Subcontractor] is applying the terms of the Contract on the grounds that Annexure E applies, giving entitlement, while [the Head Contractor] appears to be applying the terms of the Contract based on rise and fall and no entitlement under the Contract or by Annexure E.”
  1. [64]
    The Adjudicator then turned to consider the parties’ submissions and give his decision on the following issues: rise and fall; waiver; promissory estoppel; and estoppel by convention.
  2. [65]
    As to rise and fall, in setting out the Subcontractor’s submissions in paragraphs 165 to 167 of the adjudication application submissions (extracted at [54] above), the Adjudicator emphasised the words “unless stated elsewhere” from the definition of “Subcontract Sum”, as well as the Subcontractor’s argument that the statement elsewhere had been set out in Annexure E. The Adjudicator then expressed his understanding of the rise and fall issue as follows:
  1. “171.
    It is not disputed that the Subcontract has not been amended by deed of variation and amendment to incorporate Annexure E.
  1. Consideration needs to be given to whether Annexure E should be included and if so how or to what extent to apply the terms of the Subcontract, if at all.
  2. At [paragraph 168 of the adjudication application submissions] [the Subcontractor] submits ‘that the post contractual representations and assurances made by [the Head Contractor] has the effect of waiving any contractual prohibition on rise and fall’.
  3. My understanding is that [the Subcontractor] does not infer that there is entitlement of rise and fall by way of the Subcontract but is of the view that [the Head Contractor] has waived its rights to the contractual provisions of rise and fall under the Subcontract due [sic, to] the legal relationship.”
  1. [66]
    Two important observations can be made about this passage.
  2. [67]
    The first is that the Adjudicator did not specify in paragraph 172 whether he was considering whether Annexure E should be “included” as part of the Subcontract itself or as part of the parties’ legal relationship more broadly. Reading the passage fairly, and in the context of the Adjudication Decision as a whole, I interpret paragraph 172 in the second sense. That is, the Adjudicator was considering whether Annexure E formed part of the parties’ legal relationship and (if he was satisfied that it did), how, if at all, the terms of the Subcontract itself should be applied in determining whether the Subcontractor was entitled to claim the increased cost of materials under Annexure E.
  3. [68]
    This construction is consistent with the following aspects of the Adjudication Decision:
    1. the finding in paragraphs 151, 154 and 171 that the Subcontract had not been varied or amended to incorporate Annexure E;
  1. the distinction drawn in paragraphs 152 and 154 between:
    1. (i)
      a claim that Annexure E had been included into the Subcontract by way of variation or deed (which, on the Adjudicator’s expressed understanding, was not a claim that the Subcontractor had made in the adjudication application); and
    1. (ii)
      the Subcontractor’s submission that it had established that Annexure E formed part of the parties’ legal relationship (including the Adjudicator’s emphasis of the words “legal relationship”);
  2. the emphasis by the Adjudicator in paragraph 161 on the Subcontractor’s argument that cl 2.1 of the Subcontract had become redundant “as the legal relationship between the parties had changed” after they proceeded on the basis that the claim would be valued under Annexure E;
  3. the articulation in paragraph 174 of the Adjudicator’s understanding of the Subcontractor’s argument and the distinction he drew between:
    1. (i)
      an argument that an entitlement to make a claim based on rise and fall arose under the Subcontract (which, on the Adjudicator’s expressed understanding, was not an argument made by the Subcontractor); and
    1. (ii)
      the argument (which, on the Adjudicator’s expressed understanding, the Subcontractor was advancing) that the Head Contractor was precluded from relying upon the Subcontract’s preclusion of any adjustment of the Subcontract Sum based on rise and fall “due [to] the [parties’] legal relationship”;
  4. the Adjudicator’s statement in paragraph 187 (extracted at [74] below in the context of the Adjudicator’s consideration of waiver) that the Head Contractor’s conduct in issuing Annexure E to the Subcontractor evidenced its “intent to abscond from the terms of the Subcontract and to apply Annexure E”.
  1. [69]
    Where the Adjudicator referred to the parties’ “legal relationship” in paragraph 174 (and elsewhere in the Adjudication Decision) he was not limiting that relationship to their rights and obligations under the Subcontract. The Adjudicator’s reference to the argument that the Head Contractor was precluded, by waiver, from relying on the provisions of the Subcontract concerning rise and fall “due [to] the legal relationship” makes no sense if his use of the term “legal relationship” is understood as being limited to the parties’ rights and obligations under the Subcontract (particularly in circumstances where the Adjudicator had found that Annexure E had not been incorporated into the Subcontract by variation or amendment). That statement, properly understood, indicates that the Adjudicator was considering an argument that an aspect of the parties’ legal relationship outside the Subcontract (being the post contractual representations and assurances referred to in paragraph 173) impacted the Head Contractor’s ability to apply the provisions of the Subcontract in accordance with their terms.
  2. [70]
    The second observation to make about this part of the Adjudication Decision is that it did not contain any statement that the Adjudicator accepted the Subcontractor’s submission – made in paragraphs 165 to 167 of the adjudication application submissions and recited in paragraphs 165 to 167 of the Adjudication Decision – that Annexure E constituted a statement “elsewhere” that the Subcontract Sum could be adjusted for the increase in the cost of materials. That is, the Adjudicator did not say that he accepted that Annexure E engaged the statement “elsewhere” qualification in the definition of Subcontract Sum. Nor did he any say that he accepted that, because of the statement “elsewhere” (that is, in Annexure E), the Subcontractor became entitled under the Subcontract to an increase in the Subcontract Sum. To the contrary, in paragraph 174 the Adjudicator expressly stated that he did not understand the Subcontractor to be arguing that it had an entitlement to rise and fall under the Subcontract. That can only sensibly be interpreted as the Adjudicator expressly excluding from his consideration any argument that the Subcontractor had an entitlement under the Subcontract to an increase in the Subcontract Sum due to a rise in the cost of materials.
  1. [71]
    As to waiver, the Adjudicator addressed the issue from paragraph 175 of the Adjudication Decision, following on from his articulation of the Subcontractor’s argument as he understood it.
  2. [72]
    The Adjudicator set out the parties’ submissions on the applicable legal principles and the evidence of the Head Contractor’s conduct which the Subcontractor submitted constituted a waiver of its entitlement to rely upon a restriction in the Subcontract upon adjustment of the Subcontract Sum due to a rise in costs, including the email sent by Mr Dussin on 12 September 2022 (see [35] above).
  3. [73]
    In paragraph 186, the Adjudicator noted that the email stated that the Subcontractor could submit a claim (being a claim for the increased cost of materials) “for assessment”.
  4. [74]
    The Adjudicator’s conclusion on waiver was set out in paragraph 187 as follows:

“I find that I am in agreement with [the Subcontractor] in that I find that the words, and the intent of the email … given there is no evidence of [the Subcontractor] being barred from making a claim under the Contract i.e. rise and fall exclusions, or any reference thereof at the time [the Head Contractor] clearly issued [the Subcontractor] with Annexure E, therefore in my view applying the intent to abscond from the terms of the Subcontract and to apply Annexure E, thus waiving its rights to later apply the terms of the Contract.”

  1. [75]
    Read fairly, in the context of the Adjudication as a whole, I interpret this to be a statement that the Adjudicator accepted that the Head Contractor, by its conduct when the Subcontractor asked whether it could submit a claim for the increased cost of materials (that is, failing to invoke the exclusion of any adjustment of the Subcontract sum due to rise and fall in the cost of materials and instead issuing Annexure E to the Subcontractor and stating in Mr Dussin’s email that the Subcontractor could submit a claim for assessment), was precluded from arguing that the terms of the Subcontract excluded the Subcontractor’s claim.
  2. [76]
    Further, I interpret the Adjudicator’s reference to the Head Contractor’s “intent to abscond from the terms of the Subcontract and to apply Annexure E” to mean that the Adjudicator decided the Subcontractor’s claim on the basis that its entitlement to be paid the increased cost of materials did not arise under the terms of the Subcontract (from which the Head Contractor intended to abscond). Instead, that entitlement arose from the application of Annexure E. This construction is supported by the Adjudicator’s finding that the Head Contractor’s conduct amounted to waiver. That finding must have followed from a conclusion by the Adjudicator that the Subcontractor’s entitlement to submit a claim for the increased cost of materials under Annexure E (and the Head Contractor’s corresponding obligation to assess that claim in accordance with the requirements of Annexure E) was inconsistent with the rights and obligations which existed under the Subcontract (from which the Head Contractor intended to abscond).
  1. [77]
    As to promissory estoppel, in setting out the parties’ submissions concerning the applicable legal principles and the evidence of the Head Contractor’s conduct, the Adjudicator referred to:
    1. in paragraph 189, the Subcontractor’s articulation of its argument that a promissory estoppel or estoppel by conduct had arisen (in the terms set out in paragraph 120(a) of the adjudication application submissions extracted at [47] above);
    2. in paragraph 191, the Subcontractor’s submission about the circumstances in which the doctrine of promissory estoppel is invoked and the effect of the remedy (in the terms set out in paragraph 122 of the adjudication application submissions extracted at [48] above).
  2. [78]
    After setting out the parties’ submissions, the Adjudicator expressed his conclusion on the issue of promissory estoppel in paragraph 201 as follows:

“In consideration of estoppel by representation … and promissory estoppel … I find in favour of [the Subcontractor’s] argument and I’m of the view that [the Subcontractor] acted on a promise of future intent made to them by another party, in detriment to themselves, [the Subcontractor] acted or abstained from acting in reliance on the assumption and at no time did [the Head Contractor] correct [the Subcontractor’s] assumption or expectation.”

  1. [79]
    It is clear from this statement that the Adjudicator accepted the Subcontractor’s arguments concerning promissory estoppel. In expressing that conclusion, the Adjudicator did not articulate the way the estoppel operates. Nevertheless, I interpret his acceptance of the Subcontractor’s argument as meaning that the Adjudicator based his decision on a finding that the Head Contractor was estopped from relying on the terms of the Subcontract (specifically, the exclusion of an adjustment of the Subcontract Sum because of a rise in the cost of materials) to deny a claim made by the Subcontractor under Annexure E. This construction is consistent with the Subcontractor’s articulation of its argument in paragraph 120(a) of the adjudication application submission which the Adjudicator referred to in paragraph 189 of the Adjudication Decision. It is also consistent with my interpretation of the Adjudicator’s conclusion on the issue of waiver.
  2. [80]
    I do not interpret the conclusion expressed in paragraph 201 of the Adjudication Decision to be a finding by the Adjudicator that the Head Contractor was estopped from denying the Subcontract had been varied or amended to incorporate Annexure E as part of its terms. There is nothing in the Adjudicator’s recitation of the parties’ submissions on promissory estoppel, or the expression of his conclusion, which supports such an interpretation. Further, that interpretation would be inconsistent with the Subcontractor’s submission about the circumstances in which the doctrine of promissory estoppel is invoked and the effect of the remedy in paragraph 122 of the adjudication application submissions which the Adjudicator referred to in paragraph 191 of the Adjudication Decision; namely, that “the remedy is not designed to enforce the promise (as in contract law)”.
  1. [81]
    As to estoppel by convention, after setting out the parties’ submissions, the Adjudicator expressed his conclusion in paragraph 209 of the Adjudication Decision as follows:

“I am persuaded by [the Subcontractor’s] argument that [the Subcontractor] has made out a claim for estoppel by convention, in that [the Subcontractor] should follow the process set out in Annexure E for entitlement to a payment claim for the material cost increase.”

  1. [82]
    I interpret this statement to mean that the Adjudicator based his decision on a finding that the Head Contractor was estopped from denying the existence of the Subcontractor’s entitlement to claim for the increased cost of materials under Annexure E. Again, I do not interpret this conclusion to mean that the Adjudicator found the Head Contractor was estopped from denying the Subcontract had been varied or amended to incorporate Annexure E as part of its terms. The absence of any reference to the Subcontract in the stated conclusion tells against such a construction.
  2. [83]
    The Head Contractor submits that the Adjudication Decision was affected by jurisdictional error because the construction contract which the Subcontractor relied upon to make the payment claim was not the same as that relied upon by the Adjudicator to allow the Subcontractor’s claim. The payment claim identified that the relevant construction contract under which the entitlement to payment for the increased cost of materials arose was the Subcontract, as varied or amended to incorporate Annexure E as part of its terms. The Adjudicator, however, found that Annexure E had not been incorporated into the Subcontract. Consequently, he based his decision not on an entitlement which arose under the Subcontract but on his finding that the Head Contractor was estopped from refusing to assess a claim for the increased cost of material made pursuant to the provisions of Annexure E. The Head Contractor acknowledges that the estoppel found by the Adjudicator might come within the term “other arrangement” in the broad definition of “construction contract” in s 64 of the BIF Act. Even if that is the case, the Adjudicator did not perform the task required of him by s 88 of the BIF Act because that “other arrangement” was not the relevant construction contract identified in the payment claim as the source of the Subcontractor’s entitlement to a progress payment.
  3. [84]
    In response, the Subcontractor advances the following arguments:
    1. paragraphs 3, 5 and 11 of the payment claim provided that the parties were treating the Subcontract as having been varied to entitle the Subcontractor to make the claim that it did. Accordingly, the issue of how the parties’ conduct had impacted and altered each party’s rights and obligations under the Subcontract was squarely raised in the payment claim;
  1. the basis upon which the Adjudicator allowed the Subcontractor’s claim was not different to that set out in the payment claim. The Adjudicator found that the Subcontract had been varied by the parties’ conduct to entitle the Subcontractor to make a claim for the increased cost of materials. That entitlement arose under the Subcontract, as it was interpreted by the Adjudicator;
  2. in any event, the proper interpretation of the payment claim and the identification of the issues it raises for consideration were matters for the Adjudicator. Accordingly, a reasonable but erroneous decision by the Adjudicator about those matters would not invalidate the Adjudication Decision.[11] Such an error would be one made within the Adjudicator’s jurisdiction;
  3. further, the proper interpretation of the Subcontract was a matter for the Adjudicator. This means that the Adjudicator’s understanding of the Subcontract, even if it was erroneous, cannot be challenged as it would amount to an error within the Adjudicator’s jurisdiction.[12]
  1. [85]
    I am not satisfied that the Subcontractor’s arguments overcome the difficulties raised by the construction of the Adjudication Decision which I have set out above. Based on that construction, I infer that the Adjudicator approached his task under s 88 of the BIF Act on the basis that the parties’ agreement to apply Annexure E meant that Annexure E operated as the source of the Subcontractor’s entitlement to claim the increased cost of materials; and, critically, that this source of entitlement was separate from the Subcontract and inconsistent with the parties’ rights and obligations under the Subcontract. In doing so, the Adjudicator did not apply the Subcontract, as he interpreted it, but instead allowed the claim upon another basis. That amounted to jurisdictional error because the Adjudicator misunderstood the scope of his jurisdiction.[13] The Adjudication did not involve a purported application of the Subcontract.
  2. [86]
    I reach have reached this conclusion despite the Adjudicator’s later reference, in paragraphs 247 and 248 of the Adjudication Decision, to the time for payment of the payment claim being the day on which payment becomes payable “under the contract”. Even if, as the Subcontractor submits, those paragraphs reflect an application by the Adjudicator of the provisions of the Subcontract to work out the due date for payment (and it is not clear to me that they do), that does not persuade me that the Adjudicator also applied the provisions of the Subcontract in deciding the amount of the progress payment to be paid by the Head Contractor to the Subcontractor. For the reasons I have given, I am satisfied that is not the process that he undertook.
  3. [87]
    The Subcontractor further submits that any error by the Adjudicator in relation to the issue of estoppel could not be material because he found that the Subcontractor was entitled to the adjudicated amount on another basis, namely waiver by the Head Contractor. On this argument, the Adjudicator’s reasoning in accepting the waiver argument involved a finding that the Subcontractor had an entitlement to claim the increased cost of materials under the Subcontract as an in crease in the Subcontract Sum by the engagement of the “elsewhere” statement qualification in the definition of the Subcontract Sum. For the reasons set out at [70] and [76] above, I cannot accept that argument. The Adjudicator’s error was not limited to the issue of estoppel. It affected the whole of the Adjudication Decision, including his reasoning on the issue of waiver.
  1. [88]
    Given the conclusion I have reached, it is unnecessary to consider the further arguments the Head Contractor raised under its first ground (see [7](a), [7](c) and [7](d) above) or under its second ground (see [8] above).

Conclusion

  1. [89]
    It will be declared that the Adjudication Decision is affected by jurisdictional error and void.
  2. [90]
    There should also be an order for repayment of the amount of $231,707.66 which the Head Contractor paid pursuant to the Adjudication Decision with interest calculated at the rate used for default judgments (10.35%), from the date of payment (24 June 2024) to the date of this judgment, a total of 156 days. That interest amounts to $10,249.73. It will be ordered that the Subcontractor pay to the Head Contractor the sum of $241,957.39.
  1. [91]
    I will hear the parties as to costs.

Footnotes

[1] Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd (2020) QR 410; [2020] QSC 133 (Acciona), 420 [23] and the authorities cited therein.

[2] Acciona, 422 [35].

[3] Acciona, 422-423 [35](a) and (b) and the authorities cited therein.

[4] Northbuild Construction Sunshine Coast Pty Ltd v Beyfield Pty Ltd [2015] 1 Qd R 463, 469-470 [29]-[30] extracted in Acciona, 423 [35](c) and (d).

[5] Acciona, 423-424 [35](e) and the authorities cited therein.

[6] Acciona, 424-426 [36].

[7] Acciona, 426-427 [37]-[40] and the authorities cited therein.

[8] State Water Corporation v Civil Team Engineering Pty Ltd [2013] NSWSC 1879, [10].

[9] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 291 applied in the context of adjudication decisions in Maxstra NSW Pty Ltd v Blacklabel Services Pty Ltd [2013] NSWSC 406, [77] and State Water Corporation v Civil Team Engineering Pty Ltd [2013] NSWSC 1879, [115].

[10] Minister for Immigration & Border Protection v Nguyen (2017) 254 FCR 522, 529–530 [32]; Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377, [48].

[11] Downer Construction (Australia) Pty Ltd v Energy Australia (2007) 69 NSWLR 72, 96 [87]-[89]; Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339, [16].

[12] Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1, 32 [82]; EnerMech Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd [2024] NSWCA 162, [62] and [79].

[13] Northbuild Construction Sunshine Coast Pty Ltd v Beyfield Pty Ltd [2015] 1 Qd R 463, 470 [30].

Close

Editorial Notes

  • Published Case Name:

    John Holland Queensland Pty Ltd v SecureFence Pty Ltd

  • Shortened Case Name:

    John Holland Queensland Pty Ltd v SecureFence Pty Ltd

  • MNC:

    [2024] QSC 290

  • Court:

    QSC

  • Judge(s):

    Cooper J

  • Date:

    27 Nov 2024

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
Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd(2020) 4 QR 410; [2020] QSC 133
1 citation
Jump To
Cite 1 - [2020] QSC 133
Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd (2020) QR 410
2 citations
Jump To
Cite 1 - (2020) QR 410
Cite 2 - (2020) QR 410
Downer Construction (Australia) Pty Ltd v Energy Australia (2007) 69 NSWLR 72
1 citation
Jump To
Cite 1 - (2007) 69 NSWLR 72
EnerMech Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd [2024] NSWCA 162
1 citation
Jump To
Cite 1 - [2024] NSWCA 162
Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339
1 citation
Jump To
Cite 1 - [2018] NSWCA 339
Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377
1 citation
Jump To
Cite 1 - [2017] FCA 1377
Maxstra NSW Pty Ltd v Blacklabel Services Pty Ltd [2013] NSWSC 406
1 citation
Jump To
Cite 1 - [2013] NSWSC 406
Minister for Immigration & Border Protection v Nguyen (2017) 254 FCR 522
1 citation
Jump To
Cite 1 - (2017) 254 FCR 522
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
1 citation
Jump To
Cite 1 - (1996) 185 CLR 259
Northbuild Construction Sunshine Coast Pty Ltd v Beyfield Pty Ltd[2015] 1 Qd R 463; [2014] QSC 80
3 citations
Jump To
Cite 1 - [2015] 1 Qd R 463
Cite 2 - [2015] 1 Qd R 463
Cite 3 - [2015] 1 Qd R 463
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1
2 citations
Jump To
Cite 1 - (2018) 264 CLR 1
Cite 2 - (2018) 264 CLR 1
State Water Corporation v Civil Team Engineering Pty Ltd [2013] NSWSC 1879
1 citation
Jump To
Cite 1 - [2013] NSWSC 1879

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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