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Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd[2025] QSC 226

Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd[2025] QSC 226

SUPREME COURT OF QUEENSLAND

CITATION:

Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd [2025] QSC 226

PARTIES:

TOMKINS COMMERCIAL & INDUSTRIAL BUILDERS PTY LTD ACN 061 732 778

(applicant)

v

STARLINE INTERIORS PTY LTD ABN 83 887 297

(first respondent)

PAUL HICK (REGISTERED ADJUDICATOR NUMBER J634419)

(second respondent)

FILE NO:

1715 of 2025

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

11 September 2025

DELIVERED AT:

Brisbane

HEARING DATE:

20 June 2025

JUDGE:

Muir J

ORDERS:

  1. The Adjudication Decision of the second respondent dated 15 April 2025 in relation to the first respondent’s Adjudication Application number 2761515 is affected by jurisdictional error and is void.
  2. I will hear from the parties as to the form of orders and as to costs.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PAYMENT CLAIMS – where the applicant was the head contractor of a contract for the construction of a residential tower at Main Beach on the Gold Coast – where the first respondent was subcontracted by the applicant to perform components of the construction work – where the head contract and subcontract were terminated in September 2024 – where the first respondent issued a final payment claim in October 2024 seeking payment of $1,908,040.70 – where the first respondent lodged an adjudication application under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (“the Act”) – where the first respondent obtained judgment against the applicant in the District Court – where, shortly afterwards, the second respondent determined that the first respondent was entitled to be paid a sum that was greater than that sought by the parties – where the applicant seeks a declaration that the second respondent’s decision is affected by jurisdictional error and is void – whether the second respondent denied the applicant procedural fairness by failing to call for further submissions before departing from a consensus approach as to how the adjudicated amount was to be calculated – whether any denial of procedural fairness was substantial

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PAYMENT CLAIMS – whether the second respondent failed to consider the applicant’s payment schedule or the parties’ submissions on the method of calculating the adjudicated amount – whether the payment schedule lodged by the first respondent substantially complied with the approved form required under the Act

Building Industry Fairness (Security of Payment) Act 2017 (Qld) s 3, s 75, s 76, s 79, s 82, s 88, s 93, s 101

Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd (2020) 4 QR 410, considered

BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2012] QSC 346, considered

BSA Advanced Property Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd (2022) 108 NSWLR 350, cited

Builtcom Constructions Pty Ltd v VSD Investments Pty Ltd (No 2) [2025] NSWCA 134, cited

Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 255, considered

Chevron Park Pty Ltd v Groupline Constructions Pty Ltd [2024] QSC 202, distinguished

Cockram Construction Ltd v Fulton Hogan Construction Pty Ltd (2018) 97 NSWLR 773, cited

Demex Pty Ltd v McNab Building Services Pty Ltd (2023) 113 NSWLR 282, considered

Edelbrand Pty Ltd v HM Australia Holdings Pty Ltd [2012] NSWCA 31, cited

John Holland Pty Ltd v TAC Pacific Pty Ltd [2010] 1 Qd R 302, considered

Lendlease Building Pty Ltd v BCS Airport Systems Pty Ltd [2024] QSC 164, considered

Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd [2012] 1 Qd R 525, cited

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

Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd (2017) 95 NSWLR 82, cited

Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340, cited

COUNSEL:

D S Piggott KC with C Humby for the applicant

J P Hastie for the first respondent

SOLICITORS:

Thomson Geer for the applicant

Shand Taylor Lawyers for the first respondent

Introduction

  1. [1]
    This application concerns a dispute over the amount of a final progress payment under a subcontract for the construction of a residential tower at Main Beach on the Gold Coast. The applicant was the head contractor who subcontracted with the first respondent to perform components of the works for a lump sum (with adjustments).
  2. [2]
    On 15 April 2025, the second respondent, an adjudicator appointed under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (“the Act”), determined that the first respondent was entitled to be paid the sum of $1,490,381.26 (including GST) (“the Adjudicated Amount”).[1] The applicant does not accept the Adjudicated Amount and seeks a declaration (and consequential orders) that the decision of the second respondent is void on two grounds.
  3. [3]
    The first ground is that the Adjudicated Decision is affected by jurisdictional error because the second respondent awarded the applicant more than it had sought in the initial adjudication application. The resolution of this issue turns on whether:
    1. the second respondent “failed to consider” the applicant’s Payment Schedule and the adjudication  submissions of both parties; and   
    2. the second respondent denied the applicant procedural fairness by failing to call for further submissions before departing from the consensus approach taken by the parties as to how the Adjudicated Amount was to be calculated. 
  4. [4]
    The second ground is that the first respondent did not substantially comply with the “approved form” required to commence an adjudication application under the Act. The resolution of this issue turns on an assessment of whether “material” parts of the Payment Schedule were omitted from the Adjudication Application as lodged by the first respondent.
  5. [5]
    A determination of these issues is informed by a brief overview of the relevant facts.

Relevant factual background

  1. [6]
    The applicant was engaged by York Constructions as the head contractor for the construction of its “Midwater” project in August 2021. On 10 November 2023, the applicant and the first respondent executed an amended Australian Standard AS-4901-1998 subcontract, under which the first respondent agreed to undertake works for the project for a lump sum of $9,300,253.73 (excluding GST). The “Scope of Works” for the project provided for a 39-storey development consisting of 116 residential units, multiple communal spaces and an automated carparking system. The project also included a lobby, “Marina Lounge”, pool, cinema, gym, and a roof terrace.
  2. [7]
    The “trade specific” part of the Scope of Works reveal the extent of the works to be undertaken by the first respondent. It included the completion of a ceilings and partitions package, the supply and installation of insulation, external cladding and soffits, speed panel, carpentry, internal doors and cavity sliders, door frames, hardware and bathroom accessories, and other related works.
  3. [8]
    On 10 September 2024, the applicant terminated the subcontract on the basis that the head contract had been terminated on the same day. The first respondent’s work had not been completed at this point.

The Final Payment Claim 

  1. [9]
    On 14 October 2024, the first respondent issued its tenth progress claim to the applicant for the Midwater project, seeking payment of $1,908,040.70 (excluding GST) (“the Final Payment Claim”).
  2. [10]
    The Final Payment Claim was divided into five sections which correlated to different aspects of the work the first respondent was required to perform under the subcontract. It was accompanied by a suite of documentation including drawings of the locations where the work was performed and the progress of that work. The Final Payment Claim also included spreadsheets and photographs relating to the unfixed goods for which payment was claimed.
  3. [11]
    The previous nine progress claims under the subcontract had been dealt with under the process provided for by the Act. For those claims, the applicant responded with its payment schedule and certified the amount it asserted was payable. There were no disputes between the parties necessitating an adjudication in relation to those earlier claims. 
  4. [12]
    It is uncontroversial that at the time the Final Payment Claim was issued:
    1. all the amounts that the applicant had certified for payment in previous payment schedules (one to eight) had been paid to the first respondent; and
    2. the applicant had certified and scheduled that it was obliged to pay $1,350,225.88 (excluding GST) ($1,485,248.47 including GST) to the first respondent for its ninth payment claim, which had been issued in July 2024. Only $1,000,937.82 of this claim had been paid. This left approximately $349,288.06 (excluding GST) or $484,310.65 (including GST) outstanding. 
  5. [13]
    The “Claim Summary” of the Final Payment Claim set out the workings of how the amount of $1,908,040.70 (excluding GST) was calculated by identifying:
    1. that the cumulative value of the work the first respondent had performed, including other adjustments and unfixed goods excluding GST, was $2,908,978.51;
    2. that the sum of $1,000,937.82 had been previously paid (remitted) by the applicant[2] and that a sum of $135,022.59 was held by the first respondent for retention monies; and
    3. that the aggregate of the two amounts in (b) were deducted from the figure in (a) to arrive at the sum of $1,773,018.11,[3] to which $135,022.59 for amounts for release of retention was added.
  6. [14]
    On 4 November 2024, the applicant responded to the Final Payment Claim with a Payment Schedule. This schedule was comprised of 19 individual documents totalling 659 pages. It set out the reasons why the applicant considered it was not liable to pay the first respondent the full amount of the Final Payment Claim, and certified that the scheduled amount payable was $101,926.37 (excluding GST). 
  7. [15]
    On 14 February 2025, the first respondent filed an application in the District Court claiming the sum of $177,074.95 (including GST) as a debt arising under s 78(2) of the Act, or as a progress payment under the subcontract. It is uncontroversial that this claim was for some, but not all, of the unpaid certified balance of the ninth payment claim. It is not clear how the figure sued upon in the District Court was arrived at, although it was accepted before me that between late 2024 and early 2025, the applicant made “drips and drabs payments” of the outstanding certified amount from the ninth payment claim.[4]
  8. [16]
    The applicant filed a cross application in the District Court on 27 March 2025 seeking to restrain the first respondent from enforcing the debt on the assertion of various set offs. 
  9. [17]
    On 11 April 2025, the first respondent obtained judgment in the District Court in the sum of $205.500.45, comprising of $191,287.70 (inclusive of GST) together with interest in the sum of $14,212.75. The cross application was dismissed.

Adjudication Application

  1. [18]
    On 16 December 2024, the first respondent lodged an Adjudication Application in relation to the Final Payment Claim. The first respondent attached detailed submissions to the application which included the observation that a significant amount in dispute was due to a difference in view between the parties about what percentage of the subcontract works were completed by the first respondent at the time the subcontract was terminated.
  2. [19]
    As part of the Adjudication Application process, the first respondent did not seek payment for the full amount that had been the subject of its Final Payment Claim ($1,908,040.70 excluding GST). Rather, the first respondent claimed a revised sum of $1,204,711.56 (excluding GST) (“Revised Claim Amount”). That amount is $703,329.14 (excluding GST) less than the amount sought in the Final Payment Claim.
  3. [20]
    The explanation for the difference in amounts between the Final Payment Claim and the Revised Claim Amount (at least in part) is that the latter was calculated by ascertaining the value of work performed by the first respondent, less the amounts previously certified by the applicant. In contrast, the Final Payment Claim had deducted the amount previously paid by the applicant. During the preparation of the Adjudication Application, the first respondent also accepted that the Final Payment Claim included duplicate costs for unfixed items and goods, so these amounts were also removed and reconciled in the Revised Claim Amount sought in the Adjudication Application. 
  4. [21]
    On 14 January 2025, the second respondent was appointed as the adjudicator for the Adjudication Application.
  5. [22]
    On 21 February 2025, the applicant filed a detailed Adjudication Response, in which three cascading submissions were made. These submissions can be summarised as follows:
    1. First, that the Final Payment Claim was void and that the second respondent had no jurisdiction as a result of the first respondent’s alleged participation in an attempt to defraud the applicant;
    2. Second, that there were an array of additional jurisdictional issues affecting the Final Payment Claim and Adjudication Application. These issues were said to include that the Final Payment Claim was not valid under the Act because it was not served properly and failed to adequately identify the works to which the claim related, and that the Adjudication Application was made without jurisdiction because the first respondent failed to attach a full copy of the Payment Schedule and also used the wrong form under the Act; and
    3. Third, the applicant made submissions regarding the merits of the Final Payment Claim.   
  6. [23]
    By its Adjudication Response, the applicant also accepted that if the second respondent was satisfied that he had jurisdiction, the amount due and payable was to be calculated in the same way as contended by the first respondent in the Revised Claim amount, that is, by:
    1. first, determining the total cumulative amount due in relation to all works performed under the subcontract;
    2. then, deducting from that amount, the total cumulative amount which was certified in relation to the ninth payment claim.
  7. [24]
    On 10 March 2025, the second respondent requested further submissions from the parties about the jurisdictional issues raised by the applicant in its Adjudication Response, but not about the method of calculation. Both parties responded with detailed submissions about those other matters on 14 March 2025.

The Adjudication Decision

  1. [25]
    On 17 April 2025, the second respondent published the Adjudication Decision which awarded the respondent the Adjudicated Amount of $1,490,381.26 (including GST), being $1,354,892.05 (excluding GST). The Adjudicated Amount is a sum of $150,180.49 (excluding GST) more than the first respondent had claimed in its Revised Claim Amount.
  2. [26]
    In reaching his decision, the second respondent determined the value of the work performed by the first respondent and then deducted the amounts previously paid (the approach taken by the first respondent in the Final Payment Claim) as opposed to deducting the amounts previously certified by the applicant (the approach taken by both parties in the Adjudication Application). To that end, the second respondent reasoned as follows:[5]

“483. The Payment Claim is made as a cumulative claim. It claims the total value of all works completed less the amounts previously paid. Therefore, in reconciling the adjudicated amount below, I have slated the total value of all works completed and deducted from that value, the sum of all payments paid by the Respondent as stated in the Payment Reconciliation, to arrive at the adjudicated amount. That will obviously not include any payments the Respondent has made since the date of the last payment shown in the Payment Reconciliation.

484. However, I note that it is a matter for the parties when recovering/paying the Adjudicated Amount determined below, to reconcile any further payments that have been paid.” (Emphasis added).

  1. [27]
    It follows that the second respondent expressly adopted the method of calculation used by the first respondent in the Final Payment Claim as opposed to the calculation in the Revised Claim Amount that was part of the Adjudication Application. The second respondent appears to have otherwise taken the Revised Claim Amount into account because he adjusted the duplicate costs and some of the other errors or inconsistencies identified by the first respondent’s submissions that were part of the Revised Claim Amount.[6] Although, the applicant submitted (and it was conceded by the first respondent) that the second respondent awarded $2,284.37 more for the variation claim UG5 - “Unfixed miscellaneous items on site” than had been claimed by the first respondent in the Adjudication Application. But I am satisfied that nothing turns on this small and obvious oversight for the purpose of this application.
  2. [28]
    Before determining the substantive grounds of the application, it is necessary to understand the statutory regime in which the adjudication was conducted and the legal principles relevant to jurisdictional error.

Relevant statutory regime

  1. [29]
    The main purpose of the adjudication regime created by the Act “is to help people working in the building and construction industry in being paid for the work they do.”[7] This legislation, and its interstate equivalents, is often described as “remedial”[8] and necessary to avoid the interruption of cashflow and potential financial ruin.[9]
  2. [30]
    The legislation achieves this purpose by creating an entitlement to payment which is to be “determined informally, summarily and quickly”.[10] In that sense, the Act has been observed to have implemented a scheme of “rough justice”[11] with “brutally fast” deadlines.[12] 
  3. [31]
    The road to recovering payment as envisaged by the Act is to be travelled in five consecutive steps:
    1. First, the making of a payment claim by the person claiming an entitlement to a progress payment;[13]
    2. Second, the recipient of the payment claim responding to the claim by giving the claimant a payment schedule;[14]
    3. Third, the claimant making an application for an adjudication of the payment claim;[15]
    4. Fourth, the provision, by the respondent to the payment claim, of an adjudication response;[16] and
    5. Finally, an adjudicator deciding the amount of the progress payment, if any, to be paid by the respondent to the claimant.[17]
  4. [32]
    The purpose of the Act has been described as “best served by restricting the scope of intervention by the courts”.[18]  This does not mean, of course, that court intervention is not warranted on occasions. 

Jurisdictional error

  1. [33]
    A decision of an adjudicator under the Act may be reviewed for jurisdictional error.[19]
  2. [34]
    The meaning of jurisdictional error in the context of analogous legislation in New South Wales was discussed by Payne JA in Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 255 as follows:[20]

“Jurisdictional error has been described as a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it.[21] Put simply, it involves a decision-maker exceeding the authority to decide conferred on them, or failing to exercise that authority when required to do so.” (Emphasis added).

  1. [35]
    Payne JA also noted that it is not possible to “map out the metes and bounds of the notion of jurisdictional error”.[22] The concept was, however, usefully analysed by Bond J (as his Honour then was) in Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd (2020) 4 QR 410.[23] In doing so, his Honour observed that the valid exercise of an adjudicator’s jurisdiction is conditioned on several factors, including relevantly:
    1. the adjudicator having complied with their “basic and essential” statutory requirements;[24]
    2. the adjudicator arriving at their conclusion via an active process of intellectual engagement with the matters set out in s 88(2) of the Act;[25] and
    3. the adjudicator having accorded the parties the “necessary level of procedural fairness.” [26]
  2. [36]
    It remains important to bear in mind the purpose and objects of the Act when determining whether there has been jurisdictional error.[27] Material mistakes alone, whether of fact or in law, do not lead to the adjudication decision being set aside for jurisdictional error. That would undercut the Act’s mechanism for a swift, extra-curial means of securing cashflow.[28] As Applegarth J relevantly observed in BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2012] QSC 346:[29]

“An adjudicator who misconstrues or misapplies a relevant contractual provision and, as a result, does not correctly decide the amount of the progress payment, if any, to be paid to the claimant does not, for that reason alone, make a jurisdictional error.”

  1. [37]
    Similarly, adjudicators do not cease to comply with their statutory obligations simply because their “conclusion proceeded from an error in construction or wrong understanding of the applicable law.”[30] Again, the following observations of Bond J (as his Honour then was) in Acciona are most apposite:[31]

“The valid exercise of an adjudicator’s jurisdiction is not conditioned on the adjudicator reaching what is objectively the correct conclusion on allof [sic] 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.

…

Adjudicators under [the Act] do not have to get the answer right…” (Emphasis added).

Ground one: Higher Adjudicated Amount than sought

  1. [38]
    The applicant’s submission that the Adjudication Decision is affected by jurisdictional error is underpinned by two concepts: a failure to consider and a denial of procedural fairness. The applicant’s written outline of submissions also advanced a third and fourth ground. These were, respectively, that the second respondent did not have power to award an amount greater than sought and to have done so was in excess of the jurisdiction under the Act, and that the second respondent erred in finding that the requirement in s 68(1)(a) that the Payment Claim “identify” the work the subject of the claim had been satisfied. These arguments were abandoned at the hearing before me. 
  2. [39]
    It is convenient to address the alleged denial of procedural fairness first, as it was cast as the “clearest, shortest path home” for the applicant.[32]  

Alleged denial of procedural fairness

  1. [40]
    There is no doubt that the second respondent was obliged to accord the parties procedural fairness when exercising his powers of adjudication under the Act.[33] This obligation includes giving those likely to be affected by a decision the opportunity of being heard.[34] A denial of natural justice might occur where a decision is made on a basis not advanced by either party, unless it can be said that no submission could have been made which might have produced a different result.[35]
  2. [41]
    Given the “rough and ready” process in which adjudication applications are determined under the Act, a substantial or material denial of procedural fairness by an adjudicator of some practical significance or injustice must be shown before jurisdictional error will be found.[36] Such an assessment ordinarily turns on the circumstances of the case.[37]
  3. [42]
    The first respondent submits that the second respondent did not fail to afford the parties procedural fairness because:
    1. the Adjudicated Amount is not determinative of the parties’ final rights or obligations within the regime under the Act, which “shifts the incidence of where money sits until a final reckoning, or a final account, can occur”;[38] and 
    2. it was open for the second respondent to leave the reconciliation exercise to the parties, as he did.[39]
  4. [43]
    The applicant readily accepted that, “at one level”, adjudicators are allowed to make errors of both law and fact.[40] The applicant described the present case as “extraordinary”,[41] and one in which the “necessary level” of procedural fairness had not been afforded because the second respondent decided the Adjudicated Amount in a way in which neither party contended and without inviting further submissions.[42]
  5. [44]
    At least on one view, if the adjudicator had invited further submissions, this would have given the parties the opportunity to simply repeat their earlier submissions. In other words, the parties had already been afforded procedural fairness because they had made their points. The second respondent did not accept these points, as he was entitled to do. But there are nuances to the present facts which justify a conclusion that procedural fairness was not afforded to the applicant.
  6. [45]
    In this case, the second respondent had made its Final Payment Claim under the Act which it then revised as part of the Adjudication Application. That revision reduced the amount to be deducted from the cumulative claim from the amount of the certification that had been paid, to the amount certified. Both parties made clear and unqualified submissions to the second respondent that this was the correct approach. In circumstances where the second respondent used an alternative method to calculate the Adjudicated Amount, I am satisfied that the parties ought to have been given the opportunity to make further submissions on this issue.
  7. [46]
    I am also satisfied that the failure to afford the parties this opportunity has resulted in a substantial denial of procedural fairness to the applicant for three reasons. 
  8. [47]
    First, if the second respondent had invited submissions, there is a real prospect that both parties would have urged him not to calculate the Adjudicated Amount in the way that he did. That is, they both would have maintained that the deduction should be the amounts certified, not the amount paid. This finding is consistent with the evidence that the potential double up was raised with the first respondent’s solicitors on 12 February 2025 when the District Court proceedings were foreshadowed and just prior to when they were filed. By way of response on 14 February 2025, the first respondent’s solicitors made clear that there was no double up because the Adjudication Application excluded the amount sought in the District Court, stating:[43]

“At paragraph 5.5 and 5.6 of the Adjudication, our client details that the amount certified (as detailed at page 51 of the submissions in support of the Adjudication and set off against the cumulative amount pressed by our client in the Adjudication) includes the amount previously certified by your client, which has not been paid.

…

Our client presses in the Adjudication the difference between the cumulative value of work completed and the Amount Certified, including that which remains unpaid.”

  1. [48]
    Procedural fairness required the parties to be afforded an opportunity to make submissions on the appropriateness of the second respondent adopting the calculation approach which the first respondent had abandoned. Had submissions been received, there is a real prospect that the second respondent would have reached a different decision.
  2. [49]
    Second, I accept that ordinarily, the second respondent’s approach of leaving the reconciliation of accounts (insofar as payments may be received during the adjudication process or after an adjudicated amount has been assessed) is a sensible and practical one. But this is a different case.
  3. [50]
    In this case, the second respondent’s failure to call for submissions on the issue of the appropriate calculation of the deduction has led to an Adjudicated Amount being significantly more than claimed by the first respondent. But more critically, it has led to the first respondent obtaining orders against the applicant for the same work and amount but in different proceedings.
  4. [51]
    By s 93(3) of the Act, judgment in the Supreme Court based on an adjudicated amount can only be obtained for the “unpaid part” of that amount. Section 93(2) of the Act provides that the adjudication certificate must be accompanied by an affidavit “stating that the whole or a part of the adjudicated amount has not been paid” at the time the certificate is filed. It was uncontroversial that upon the adjudication certificate being filed in this case, the applicant will hold a judgment in the Supreme Court for the Adjudicated Amount. It is not the case, for example, that a Supreme Court judgment is to be reduced by the amount of a District Court judgment.[44]
  5. [52]
    The first respondent has now given an undertaking not to pursue the District Court judgment if the present application is dismissed.[45] But that does not change the fact that the judgment exists, has not been set aside and remains unpaid. The certificate registered as a judgment in the Supreme Court does not create a final or authoritative determination of the things which substantially underpin the Adjudication Decision.[46] But at least part of that registered judgment will be for the same work and sum as covered by the District Court judgment.
  6. [53]
    The consequence of the second respondent adopting a method of calculation contrary to the positions of both parties, in circumstances where he did not afford either of them the opportunity to make further submissions, is material. It means that the first respondent will have orders against the applicant in the District Court and the Supreme Court which overlap.[47] This is an unreasonable, unsatisfactory and unjustified outcome.
  7. [54]
    Finally, the applicant submits, and the first respondent concedes, that the resulting quandary cannot be unravelled by severing the amount certified and unpaid from the Adjudicated Amount under s 101(4) of the Act. I accept that concession as a reasonable one in the circumstances of this case. 
  8. [55]
    Whilst this finding disposes of the application in the applicant’s favour, I will briefly address each of the other matters pressed.

Alleged failure to consider 

  1. [56]
    The applicant submits that contrary to s 88(2) of the Act, the second respondent failed to consider the Payment Schedule lodged by the applicant, or the submissions of the applicant or the first respondent.  
  2. [57]
    There is a distinction between procedural fairness and the question of whether there has been a failure to consider.[48] The former is concerned with the conduct of the adjudicator towards the parties, whilst the latter involves an inquiry into the private process of decision-making.[49] This process may be revealed by the reasons.[50] The fact that an adjudicator does not refer to all the submissions advanced on a particular issue does not mean those submissions have not been considered.[51]
  3. [58]
    The applicant does not challenge the adequacy of the second respondent’s reasons. Rather, the applicant submits that the second respondent failed to consider the Payment Schedule and the consensus submissions of both parties that the amount to be deducted was the greater certified amount, as opposed to the lesser amount paid. 
  4. [59]
    The threshold to establish a failure to consider in the context of a legislative regime such as that provided for under the Act is difficult to overcome. As the New South Wales Court of Appeal relevantly observed in Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225:[52]

“In a practical sense, the problem for a party challenging a determination is not to identify whether the mental process undertaken by the adjudicator was ‘active’, ‘intellectual’ or ‘genuine’, but  rather to identify a basis on which it could be said that consideration did not occur.”   

  1. [60]
    Relevantly, the circumstances where an omission to consider may be inferred include the “failure to refer to a submission on a centrally important matter, clearly articulated and based on uncontested facts”.[53]
  2. [61]
    In this case, the consensus approach to calculating the adjudicated amount by deducting the amount certified to date was an uncontroversial but important one. The approach was clearly articulated in the Payment Schedule and in both parties’ adjudication submissions. In these circumstances, the failure of the second respondent to expressly refer to the Payment Schedule or the submissions of the parties on this issue is more than just a mere oversight or mistake. Rather, this is one of those rare cases where the only reasonable inference open is that a consideration of these documents on this issue did not occur.[54] It follows that I am satisfied that a breach of the duty to consider is established.
  3. [62]
    For the reasons set out in paragraph 53 above, I am also satisfied that the breach is a material one.

Ground two: Lack of substantial compliance with the Act

  1. [63]
    Initially, the applicant submitted that the second respondent failed to comply with the requirements of s 79(2)(a) of the Act for two reasons. The first reason was that the second respondent had used version 16 rather than version 17 of the approved form under the Act. Whilst that ground was developed in the applicant’s written submissions, it was abandoned at the hearing before me. Instead, the applicant focused on the second basis: that substantial compliance was not achieved because the approved form required the attachment of the full and complete Payment Schedule as uploaded in accordance with the subcontract, and the copy of the Payment Schedule included in the Adjudication Application only contained part of that schedule (236 of the 659 pages) and  therefore omitted material components and parts of the substantive answers to the Final Payment Claim.
  2. [64]
    Senior counsel for the applicant was careful to pitch this ground as a technical point only, but one made in the context of a “technical regime”.[55]
  3. [65]
    I am not satisfied that the first respondent failed to comply with the requirements of s 79(2)(a) of the Act for the following four reasons:
    1. First, it is for the adjudicator to determine the content and scope of the payment claim and the Payment Schedule, including the scope and content of the dispute between the parties.[56] The second respondent did this, concluding that it was the 26‑page document referred to as the “body of the Payment Schedule”;[57]  
    2. Second, substantial compliance was achieved because this 26‑page summary met all the requirements for a Payment Schedule. It also contained a comprehensive statement as to why the applicant took a different view from the first respondent about what amount was payable. It was not necessary for the Payment Schedule to have attached all of the referenced documents;
    3. Third, the Payment Schedule identified a hyperlink to documents so that the second respondent knew that further documents existed and could be requested; and
    4. Fourth, the failure to attach the hyperlink with further documents did not result in any injustice because the applicant ultimately provided the second respondent with those documents. 

Conclusion

  1. [66]
    I find that the Adjudication Decision of the second respondent dated 15 April 2025 in relation to the first respondent’s Adjudication Application number 2761515 is affected by jurisdictional error and is void.
  2. [67]
    I will hear the parties as to the form of orders and as to costs.

Footnotes

[1]  That is $1,354,892.05 excluding GST, which is approximately 14.5 per cent of the unadjusted subcontract sum.

[2]  This is part of the certified amount in the ninth payment claim.

[3]  By my calculation this figure should be $1,773,018.10, being one cent less than the figure noted in the claim summary: see Affidavit of Errol Knezevic filed 17 June 2025 at EK-1, p 149. I am satisfied that nothing turns on this discrepancy.

[4]  T1-46, line 43.

[5]  Affidavit of Thomas Patrick McKillop filed 29 April 2025 at Ex TPM-12, p 1202.

[6]  The applicant conceded that the second respondent  “picked up on those adjustments” but maintained that he otherwise failed to adopt the “nature of the deduction” that both parties used in the Adjudication Application: see T1-14, lines 12-19.

[7] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 3(1).

[8]  See Edelbrand Pty Ltd v HM Australia Holdings Pty Ltd [2012] NSWCA 31 at [30] (Bathurst CJ, McColl JA and Tobias AJA agreeing).

[9]  Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at 17 [40] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ), see also Chevron Park Pty Ltd v Groupline Constructions Pty Ltd [2024] QSC 202 at [46] (Treston J); Lendlease Building Pty Ltd v BCF Airport Systems Pty Ltd & Ors [2024] QSC 164 at [103] (Sullivan J).

[10] Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at 18 [44] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ), quoting Falgat Constructions Pty Ltd v Equity Australia Corp Pty Ltd (2005) 62 NSWLR 385 at 389 [22] (Handley JA, Santow JA and Pearlman AJA agreeing), see further Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340 at [3]-[19] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).

[11] Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd (2017) 95 NSWLR 82 at 112 [130] (McColl JA, Beazley ACJ and Macfarlan JA agreeing).

[12] Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at 17 [40] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

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

[14]  Ibid s 76.

[15]  Ibid s 79.

[16]  Ibid s 82.

[17]  Ibid s 88.

[18] BSA Advanced Property Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd (2022) 108 NSWLR 350 at [35] (Ward P, Leeming, White and Brereton JJA and Basten AJA); Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 at 406 at [55] (Spigelman CJ).

[19]  See, eg, Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at 6 [2] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

[20]  At 235-6 [38] (Ward ACJ and Basten AJA agreeing).

[21]  Citing Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [24] (Kiefel CJ, Gageler and Keane JJ).

[22] Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 255 at 236 [40] (Ward ACJ and Basten AJA agreeing).

[23]  At [32]-[43].

[24] Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd (2020) 4 QR 410 at [34] (Bond J, as his Honour then was).

[25]  Ibid at [35]. The duty to consider is also discussed in Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225 at 238 [52]-241 [69] (Payne JA, Ward ACJ and Basten AJA agreeing).

[26] Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd (2020) 4 QR 410 at [41] (Bond J, as his Honour then was), citing Northbuild Constructions Pty Ltd v Central Interior Linings Pty Ltd [2012] 1 Qd R 525 at 556 [80] (White JA).

[27] Lendlease Building Pty Ltd v BCS Airport Systems Pty Ltd [2024] QSC 164 at [103] (Sullivan J).

[28] Builtcom Constructions Pty Ltd v VSD Investments Pty Ltd (No 2) [2025] NSWCA 134 at [48] (Leeming JA, Free JA agreeing), citing Probuild Constructions (Aus) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1.

[29]  At [8], although I note that an appeal against this decision was allowed in BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2015] 1 Qd R 228, partially on the basis that it had not been necessary to decide whether there had been jurisdictional error: at [48]. 

[30] Cockram Construction Ltd v Fulton Hogan Construction Pty Ltd (2018) 97 NSWLR 773 at 780 [41] (Meagher JA, Basten JA and Barrett AJA agreeing).

[31] Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd (2020) 4 QR 410 at [35](a), [35](e).

[32]  T1-20, lines 36-37.

[33]  See, eg, Demex Pty Ltd v McNab Building Services Pty Ltd (2023) 113 NSWLR 282 at 285 [9] (Kirk JA, Mitchelmore and Adamson JJA agreeing).

[34]  Ibid.

[35] Annie Street JV Pty Ltd v MCC Pty Ltd [2016] QSC 268 at [31] (Flanagan J, as his Honour then was), citing Caltex Refineries (Qld) Pty Ltd & Anor v Allstate Access (Australia) Pty Ltd & Ors [2014] QSC 223 at [38] (McMurdo J, as his Honour then was); John Holland Pty Ltd v TAC Pacific Pty Ltd [2010] 1 Qd R 302 at 321 [57] (Applegarth J).

[36] Demex Pty Ltd v McNab Building Services Pty Ltd (2023) 113 NSWLR 282 at 290 [30]-[34] (Kirk JA, Mitchelmore and Adamson JJA agreeing).

[37]  Ibid at 290 [32].

[38]  T1-43, lines 5-8.

[39]  See, eg, Chevron Park Pty Ltd v Groupline Constructions Pty Ltd [2024] QSC 202 at [68], [71] (Treston J).

[40]  T1-8, lines 40-41.

[41]  Ibid 1-8, line 25.

[42]  Ibid 1-22, lines 47-49,  with reference to Annie Street JV Pty Ltd v MCC Pty Ltd at [31] (Flanagan J, as his Honour then was); John Holland Pty Ltd v TAC Pacific Pty Ltd [2009] QSC 205 at [57] (Applegarth J); Caltex Refineries (Qld) v Allstate Access (Australia) Pty Ltd [2014] QSC 223 at [38] (McMurdo J, as his Honour then was).

[43]  Affidavit of Thomas Patrick McKillop filed 20 June 2025 at Ex TPM(3)-10, p 257-8 [5], [8].

[44]  On this issue, the present facts are easily distinguishable from those before Treston J in Chevron Park Pty Ltd v Groupline Constructions Pty Ltd [2024] QSC 202 at [89].

[45]  This undertaking was given in writing by the director of the first respondent on the afternoon of the hearing and was tendered as Exhibit 2 in the proceeding.

[46] Lendlease Building Pty Ltd v BCS Airport Systems Pty Ltd [2024] QSC 164 at [328] (Sullivan J).

[47]  See T1-23, lines 24-28.

[48]  See, eg, Lendlease Building Pty Ltd v BCS Airport Systems Pty Ltd [2024] QSC 164 at [217]-[218] (Sullivan J).

[49]  See, eg, Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225 at 238 [51] (Payne JA, Ward ACJ and Basten AJA agreeing).

[50]  Ibid.

[51]  Ibid at 241 [66]-[69] (Payne JA, Ward ACJ and Basten AJA agreeing).

[52]  At 240 [62] (Payne JA, Ward ACJ and Basten JA agreeing).

[53]  Ibid at 241 [69].

[54]  Ibid.

[55]  T1-35, line 15.

[56] Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd [2025] NSWCA 49 at [80] (Payne JA, Gleeson JA and Griffiths AJA agreeing). 

[57]  Affidavit of Thomas Patrick McKillop filed 29 April 2025 at Ex TPM-12, p 1115 [127].

Close

Editorial Notes

  • Published Case Name:

    Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd

  • Shortened Case Name:

    Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd

  • MNC:

    [2025] QSC 226

  • Court:

    QSC

  • Judge(s):

    Muir J

  • Date:

    11 Sep 2025

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
5 citations
Jump To
Cite 1 - (2020) 4 QR 410
Cite 2 - (2020) 4 QR 410
Cite 3 - (2020) 4 QR 410
Cite 4 - (2020) 4 QR 410
Cite 5 - (2020) 4 QR 410
Annie Street JV Pty Ltd v MCC Pty Ltd [2016] QSC 268
1 citation
Jump To
Cite 1 - [2016] QSC 268
BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2012] QSC 346
2 citations
Jump To
Cite 1 - [2012] QSC 346
Cite 2 - [2012] QSC 346
BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd[2015] 1 Qd R 228; [2013] QCA 394
1 citation
Jump To
Cite 1 - [2015] 1 Qd R 228
BSA Advanced Property Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd (2022) 108 NSWLR 350
2 citations
Jump To
Cite 1 - (2022) 108 NSWLR 350
Cite 2 - (2022) 108 NSWLR 350
Builtcom Constructions Pty Ltd v VSD Investments Pty Ltd (No 2) [2025] NSWCA 134
2 citations
Jump To
Cite 1 - [2025] NSWCA 134
Cite 2 - [2025] NSWCA 134
Caltex Refineries (Qld) Pty Ltd v Allstate Access (Australia) Pty Ltd [2014] QSC 223
2 citations
Jump To
Cite 1 - [2014] QSC 223
Cite 2 - [2014] QSC 223
Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225
3 citations
Jump To
Cite 1 - (2023) 112 NSWLR 225
Cite 2 - (2023) 112 NSWLR 225
Cite 3 - (2023) 112 NSWLR 225
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393
1 citation
Jump To
Cite 1 - (2010) 78 NSWLR 393
Chevron Park Pty Ltd v Groupline Constructions Pty Ltd [2024] QSC 202
4 citations
Jump To
Cite 1 - [2024] QSC 202
Cite 2 - [2024] QSC 202
Cite 3 - [2024] QSC 202
Cite 4 - [2024] QSC 202
Cockram Construction Ltd v Fulton Hogan Construction Pty Ltd & Anor (2018) 97 NSWLR 773
2 citations
Jump To
Cite 1 - (2018) 97 NSWLR 773
Cite 2 - (2018) 97 NSWLR 773
Demex Pty Ltd v McNab Building Services Pty Ltd (2023) 113 NSWLR 282
3 citations
Jump To
Cite 1 - (2023) 113 NSWLR 282
Cite 2 - (2023) 113 NSWLR 282
Cite 3 - (2023) 113 NSWLR 282
Edelbrand Pty Ltd v HM Australia Holdings Pty Ltd [2012] NSWCA 31
2 citations
Jump To
Cite 1 - [2012] NSWCA 31
Cite 2 - [2012] NSWCA 31
Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd (2005) 62 NSWLR 385
1 citation
Jump To
Cite 1 - (2005) 62 NSWLR 385
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
1 citation
Jump To
Cite 1 - (2018) 264 CLR 123
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 - [2010] 1 Qd R 302
Cite 3 - [2010] 1 Qd R 302
Lendlease Building Pty Ltd v BCS Airport Systems Pty Ltd [2024] QSC 164
5 citations
Jump To
Cite 1 - [2024] QSC 164
Cite 2 - [2024] QSC 164
Cite 3 - [2024] QSC 164
Cite 4 - [2024] QSC 164
Cite 5 - [2024] QSC 164
Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd [2025] NSWCA 49
1 citation
Jump To
Cite 1 - [2025] NSWCA 49
Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd[2012] 1 Qd R 525; [2011] QCA 22
2 citations
Jump To
Cite 1 - [2012] 1 Qd R 525
Cite 2 - [2012] 1 Qd R 525
Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd (2017) 95 NSWLR 82
2 citations
Jump To
Cite 1 - (2017) 95 NSWLR 82
Cite 2 - (2017) 95 NSWLR 82
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1
6 citations
Jump To
Cite 1 - (2018) 264 CLR 1
Cite 2 - (2018) 264 CLR 1
Cite 3 - (2018) 264 CLR 1
Cite 4 - (2018) 264 CLR 1
Cite 5 - (2018) 264 CLR 1
Cite 6 - (2018) 264 CLR 1
Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340
2 citations
Jump To
Cite 1 - (2016) 260 CLR 340
Cite 2 - (2016) 260 CLR 340

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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