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York Property Holdings Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd[2025] QSC 44

York Property Holdings Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd[2025] QSC 44

SUPREME COURT OF QUEENSLAND

CITATION:

York Property Holdings Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd [2025] QSC 44

PARTIES:

YORK PROPERTY HOLDINGS PTY LTD AS TRUSTEE FOR YORK PROPERTY TRUST

(ABN 94 831 587 168)

(applicant)

v

TOMKINS COMMERCIAL & INDUSTRIAL BUILDERS PTY LTD

(ABN 98 061 732 778)

(first respondent)

and

CHRIS LENZ

(ADJUDICATOR NO. J622914)

(second respondent)

and

HWL EBSWORTH LAWYERS

(ABN 37 246 549 189)

(third respondent)

FILE NO/S:

BS 630/25

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

18 March 2025

DELIVERED AT:

Brisbane

HEARING DATE:

27 February 2025

JUDGE:

Treston J

ORDER:

I will hear the parties in relation to severance and/or remitter, and costs.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the applicant was the principal under the contract and the first respondent undertook to complete the construction of a residential apartment building – where the first respondent served a Payment Claim on the applicant pursuant to Pt 3 of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) – where the applicant served a notice terminating the contract for breach by the first respondent – where the first respondent disputed the termination and lodged an adjudication application – where the adjudicator made a decision ordering the applicant to pay the first respondent $16,825,279.17 – where the applicant seeks a declaration that the adjudication decision is void due to jurisdictional error – whether such a declaration ought to be made

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICITONAL MATTERS – where an adjudication decision in the amount of $16,825,279.17 was made under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) – where the applicant contends the adjudication decision was affected by jurisdictional error – where the applicant relies on two bases of jurisdictional error being that the adjudicator first improperly construed a “take-out” clause in the contract and second failed to properly consider the parties’ submissions and the evidence – whether the bases alleged by the applicant constitute jurisdictional error

Building Industry Fairness (Security of Payment) Act 2017 (Qld), ss 3, 67, 70-78, 88, 101, 200

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

Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225

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

Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385

Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd (2018) 98 NSWLR 712

Kirk v Industrial Court (NSW) (2010) 239 CLR 531

Lendlease Building Pty Ltd v BCS Airport Systems Pty Ltd & Ors [2024] QSC 164

Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd (No 2) [2024] NSWSC 1223

Niclin Constructions Pty Ltd v Robotic Steel Fab Pty Ltd [2023] QSC 218

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

Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWSC 208

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

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

SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2020] QSC 307

Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd & Ors [2012] QSC 373

Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2007] NSWSC 941

QCLNG Pipeline Pty Ltd v McConnell Dowell Constructions (Aust) Pty Ltd and Consolidated Contracting Company Australia Pty Ltd & Anor [2011] QSC 292

COUNSEL:

G D Beacham KC with T W Ambrose for the applicant

D S Piggott KC with J E Menzies for the first respondent

SOLICITORS:

Holding Redlich for the applicant

Thomson Geer for the first respondent

Introduction

  1. [1]
    York and Tomkins are parties to a building contract.  York is the Principal and Tomkins is the builder.
  2. [2]
    Pursuant to a Contract dated 12 August 2021 Tomkins undertook to carry out works for the development of a 40-storey residential apartment building at Main Beach, Queensland.
  3. [3]
    Between 12 August 2021 and 29 August 2024, Tomkins performed work under the Contract.  During that time progress claims and progress payments were made under the Contract but since late August 2024 the parties have been in dispute about the project.
  4. [4]
    On 29 August 2024 Tomkins served a Payment Claim in respect of the Contract in the sum of $43,063,649.46 (inc. GST).  In response York served a Payment Schedule for $Nil.
  5. [5]
    The claim was both a progress claim made under cl 37.1 of the General Conditions of the Contract, and a Payment Claim made under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (the BIF Act).
  6. [6]
    On 10 September 2024 Tomkins served a notice terminating the Contract for breach by York.  York disputes the validity of Tomkins’ termination.
  7. [7]
    On 12 September 2024 the Superintendent issued a Payment Schedule responding to Payment Claim 35 and certifying as payable a negative amount of -$957,401.70 (inc. GST) and York served on Tomkins a notice under cl 39.4 of the Contract purporting to take the work out of Tomkins’ hands.
  8. [8]
    On 25 October 2024 Tomkins lodged an adjudication application with the second respondent as Adjudicator.  The amounts of some claims were altered, and some were abandoned. 
  9. [9]
    On 12 December 2024 York’s response to the adjudication was lodged.
  10. [10]
    On 11 February 2025 the Adjudicator gave a decision and ordered an amount of $17,318,865.88 (inc GST) which was corrected a few days later on 14 February 2025 to reduce the adjudicated amount on account of some miscalculations (the detail of which is not relevant to this proceeding).  If valid, the decision of 14 February 2025 would require York to pay Tomkins in excess of $16,825,279.17 (inc GST). 
  11. [11]
    York has not paid the adjudicated amount to Tomkins.
  12. [12]
    On 18 February 2025, upon York giving the usual undertaking as to damages, an interlocutory injunction was granted restraining Tomkins from enforcing the decision and an escrow agent from making a disbursement to Tomkins from an escrow account in relation to the decision.  This is the final relief of that application.
  13. [13]
    York contends that the Adjudication Decision is affected by jurisdictional error and is void, together with consequential injunctive relief. Tomkins opposes the grant of relief.  The second respondent, who is the Adjudicator, indicated he would not take an active role in the proceedings and would abide the order of the court.  The third respondent, the firm of solicitors who acted as the escrow agent also agreed not to take an active role in the proceedings and to abide the order of the court.
  14. [14]
    York relies upon two jurisdictional errors.  The first is in relation to the construction of the Contract.  After York giving a notice to show cause, and Tomkins failing to show cause, York contends it was entitled under the Contract to give a further notice to take the whole of the remaining works out of Tomkins’ hands and to suspend payment under the Contract until it became due and payable pursuant to cl 39.6.  The Adjudicator held that cl 39.6 was void as an attempt to contract out of the BIF Act under s 200.  York contends this is an error in the construction of the Contract’s terms.
  15. [15]
    Second, York contends that the Adjudicator also failed to consider the parties’ submissions, as he was required to under s 88(2) of the BIF Act.  This is said to have arisen in two ways. The first being that it is contended that the Adjudicator missed a concession by Tomkins in its submissions that reduced a claim for work on the façade from about $11.8 million to about $8.1 million, and second, missed submissions by York that the value of a deduction for defective work on the façade had increased from $4 million to over $11 million.
  16. [16]
    Before considering each of the particular bases of the alleged jurisdictional error, it is necessary to identify the relevant general legal principles.

Jurisdictional error under the BIF Act

  1. [17]
    There is no provision to appeal an Adjudicator’s decision under the BIF Act.
  2. [18]
    A decision can however be reviewed for jurisdictional error.
  3. [19]
    The parties agree that a detailed consideration of the relevant principles of jurisdictional error in the context of the BIF Act were set out by Bond J (as his Honour then was) in Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd, [1] which analysis is regularly adopted by other judges of this court.  The respondent referred to my own recent summary of those principles[2] as set out by Bond J, as follows:
    1. the valid exercise of an Adjudicator’s jurisdiction is conditioned on the decision having complied with at least the “basic and essential” statutory requirements of the BIF Act at ss 64, 68, 70, 75, 79(4), 80, 81, 88 and 150;[3]
    2. the valid exercise of an Adjudicator’s jurisdiction is conditioned on the Adjudicator having arrived at their conclusion by a process which considers the matters set out in s 88(2) of the BIF Act, noting:[4]
      1. (i)
        the valid exercise of the Adjudicator’s jurisdiction is not conditioned on the Adjudicator reaching what is objectively the correct conclusion of all the questions of fact or law required by the consideration of the matters set out in s 88(2);
      1. (ii)
        the question is not whether the court would have come to the same conclusion as the Adjudicator, but whether the Adjudicator arrived at their conclusion by a process which failed to consider the matters set out in s 88(2);
      1. (iii)
        an error in the identification of the terms of the Contract or their interpretation will not be a jurisdictional error;
      1. (iv)
        there is a difference between an error which is not a jurisdictional error and that which is; and
      1. (v)
        if it can be demonstrated that the Adjudicator has not gone about their task by carrying out the active process of intellectual engagement with the issues and the submissions before them that the BIF Act requires, then they will have fallen into jurisdictional error because they will not have done the very thing that s 88(2) requires them to do.
    3. the valid exercise of the Adjudicator’s jurisdiction is conditioned on the Adjudicator having arrived at their conclusion by a process which does not involve consideration of the matter set out in s 88(3)(b), being those matters which the Adjudicator is required to ignore;[5]
    4. failure to provide written reasons for the decision in compliance with s 88(5)(b) is a jurisdictional error;[6]
    5. a valid exercise of an Adjudicator’s jurisdiction requires the Adjudicator having provided parties with “the necessary level of procedural fairness”;[7] and
    6. the valid exercise of the Adjudicator’s jurisdiction is conditioned on the Adjudicator having made a good faith attempt to perform the function specified in s 88.[8]
  4. [20]
    The main purpose of the BIF Act, as described in s 3, is to ensure people in the building industry are paid fairly and promptly.   Broadly, this is done in two ways; first by granting the entitlement to progress payments, whether or not the contract makes provision for them, and second by establishing a procedure for the making of Payment Claims, responding to Payment Claims, the adjudication of disputed Payment Claims and the recovery of the amounts claimed.[9] Sullivan J has recently described the purpose and object of the Act to provide a “quick and inexpensive” interim procedure for builders to be paid for their work,[10] being an important consideration for construing how the provisions of the Act operate and whether they give rise to jurisdictional facts.
  5. [21]
    The purpose of the Act, and the compressed timeframes for adjudication, are therefore relevant matters as to what is expected of an Adjudicator, a matter to which I will return.[11] 

Further factual background

  1. [22]
    In order to determine whether there has been jurisdictional error, it is necessary to understand more regarding the contractual background.
  2. [23]
    On 29 August 2024, Tomkins sent a letter to York and to the Superintendent under the Contract attaching Progress Claim 35 “for works completed up to the reference date under the Contract …”.  Relevantly:
    1. the date stated in Payment Claim 35 was “28 August 2024”;
    2. the amount claimed in Payment Claim 35 was $43,063,649.46 (inc of GST); and
    3. Payment Claim 35 stated: “This progress claim serves as a Payment Claim under then Building Industry Fairness (Security of Payment) Act 2017 (Qld)”.
  3. [24]
    28 August 2024 was therefore a “reference date” under the BIF Act.
  4. [25]
    On 2 September 2024 York issued a notice to show cause to Tomkins under cl 39.2 of the Contract on the basis that York asserted Tomkins had committed a substantial breach. Clause 39 relevantly provided:

“39Default or insolvency

…

39.2Contractor’s default

If the Contractor commits a substantial breach of the Contract, the Principal may, by hand or by certified post, give the Contractor a written notice to show cause.

Substantial breaches include, but are not limited to:

(a)failing to:

  1. (i)
    provide security;
  1. (ii)
    provide evidence of insurance;
  1. (iii)
    comply with a direction of the Superintendent pursuant to subclause 29.3;
  1. (iv)
    use the materials or standards of work required by the Contract; or
  1. (v)
    perform properly the Contractor’s design obligations;

(b)wrongful suspension of work;

(c)substantial departure from a construction program without reasonable cause or the Superintendent’s approval;

(d)where there is no construction program, failing to proceed with due expedition and without delay; and

(e)in respect of clause 38, knowingly providing documentary evidence containing an untrue statement.

39.3Principal’s notice to show cause

A notice under subclause 39.2 will state:

(a)that it is a notice under clause 39 of these General Conditions of Contract;

(b)the alleged substantial breach;

(c)that the Contractor is required to show cause in writing why the Principal should not exercise a right referred to in subclause 39.4;

(d)the date and time by which the Contractor must show cause (which will not be less than 7 clear days after the notice I received by the Contractor); and

(e)the place at which cause must be shown.

39.4Principal’s rights

If the Contractor fails to show reasonable cause by the stated date and time, the Principal may by written notice to the Contractor:

  1. take out of the Contractor’s hands the whole or part of the work remaining to be completed and suspend payment until it becomes due and payable pursuant to subclause 39.6; or
  1. terminate the Contract.

39.5Take out

The Principal will complete work taken out of the Contractor’s hands and may:

  1. use materials, equipment and other things intended for WUC; and
  1. without payment of compensation to the Contractor:
  1. take possession of, and use such of the construction plant and other things on or in the vicinity of the site as were used by the Contractor; and
  1. contract with such of the Contractor’s subcontractors and consultants; and
  1. take possession of, and use, such of the design documents.

as are reasonably required by the Principal to facilitate completion of WUC.

If the Principal takes possession of construction plant, design documents or other things, the Principal shall maintain them and, subject to clause 39.6, on completion of the work, shall return such of them as are surplus.

The Superintendent will keep records of the cost of completing the work.

39.6Adjustment on completion of work taken out

When work taken out of the Contractor’s hands has been completed, the Superintendent will assess the cost thereby incurred and will certify as moneys due and payable accordingly the difference between that cost (showing the calculations therefor) and the amount which would otherwise have been paid to the Contractor if the work had been completed by the Contractor. 

The Contractor is indebted to the Principal, the Principal may retain construction plant or other things taken under subclause 39.5 until the debt is satisfied.  If after reasonable notice, the Contractor fails to pay the debt, the Principal may sell the construction plant or other things and apply the proceeds to the satisfaction of the debt and the costs of sale.  Any excess will be paid to the Contractor.”

  1. [26]
    On 10 September 2024, Tomkins served a notice terminating the Contract for breach by York. York disputes the validity of the termination.
  2. [27]
    On 11 September 2024 Tomkins purported to show cause under cl 39.4.
  3. [28]
    On 12 September 2024 the Superintendent issued a Payment Schedule responding to the Payment Claim. That Schedule certified the amount payable as a negative amount of -$957,401.70 (inc. GST).
  4. [29]
    Also on 12 September 2024, York purported to exercise its asserted right to take the works out of the contractor’s hands pursuant to cl 39.4 of the Contract. 
  5. [30]
    When York delivered its Payment Schedule (responding to the Payment Claim), York stated:

“On 12 September 2024, the Principal issued a take-out notice pursuant to the contract, including the exercise of cl 39.4(a) to take the whole of the remaining works out of the Contractor’s hands and suspend payment until it becomes due and payable pursuant to subclause 39.6.  As the contractor has no right to payment until it becomes due and payable pursuant to subclause 39.6, the amount certified in the payment and therefore scheduled is $0.”

  1. [31]
    On 25 October 2024, Tomkins made an Adjudication Application under s 79 of the BIF Act. York’s Adjudication Response was given on 12 December 2024. On 8 and 10 January 2025 the Adjudicator requested further submissions which were forthcoming from both parties. The material placed before the Adjudicator was substantial, exceeding 26,000 pages and including approximately 11 affidavits and 12 expert reports.
  2. [32]
    On 11 February 2025 the Adjudicator awarded the amount of $17,318,865.88 (inc. GST) to Tomkins by way of an Adjudication Decision.  On 14 February 2025 the Adjudicator revised the award to $16,825,279.17 (inc. GST) which was ultimately the Adjudicated Amount. 
  3. [33]
    York has not paid the Adjudicated Amount to Tomkins, and by its originating application York seeks declarations that the Adjudication Decision is affected by jurisdictional error and void, together with consequential injunctive relief.

The alleged jurisdictional errors

  1. [34]
    The first alleged jurisdictional error is said to be an error in the construction of clause 39 of the Contract.  That clause pertains to the validity of the take-out notice.
  2. [35]
    The validity and effect of the take-out notice was debated before the Adjudicator:
    1. Tomkins contended that the Contract could not suspend its statutory right to a progress payment for work already carried out up to the reference date for the Payment Claim and cl 39.4 was void for “contracting out” of the BIF Act to the extent it was taken to postpone that right until after completion of the process for which cl 39.6 provided. 
    2. York contended that cl 39 was not void because York did not purport to extinguish the reference date from which the Payment Claim was made; rather, York contended that the effect of the notice under cl 39 was to suspend any right that Tomkins had to be paid under the Contract.  As such if the take-out notice was valid, any claim for a Progress Payment had to be assessed as $Nil because until the cl 39.6 process took place there was no right to be paid anything under the Contract against which the progress payments could be assessed.
  3. [36]
    The Adjudicator found in favour of the construction urged by Tomkins. I will refer to this as the alleged construction error.
  4. [37]
    The second alleged jurisdictional error is that York contends that the Adjudicator failed to consider certain material, which he was obliged to consider under s 88(2) of the BIF Act leading to the result that he awarded an incorrect amount to Tomkins. 
  5. [38]
    I will refer to this as the alleged consideration error.
  6. [39]
    I deal with each of the errors in greater detail below.

The alleged construction error

  1. [40]
    Before turning to the question of whether the Adjudicator was wrong or not in his construction of cl 39, it is necessary to determine whether, even if wrong, the decision constitutes a jurisdictional error. That is because, as set out above, unless it is a jurisdictional error then it is not open to review because the BIF Act does not contain any provision for appeal from an Adjudicator’s decision, or any other mechanism by which an Adjudicator’s decision may be reviewed for error.[12]
  2. [41]
    In Acciona’s case, Bond J observed that an error in the identification of the terms of the Contract, or in their interpretation, will not be a jurisdictional error.  In doing so his Honour referred to McMurdo J in Northbuild Constructions Sunshine Coast Pty Ltd v Beyfield Pty Ltd[13] where his Honour said:

“To determine an application, an Adjudicator must identify the relevant terms of the contract upon which the claim is made and then apply the facts, as he or she finds them to be, to those terms upon their proper interpretation.  The identification of the terms and the interpretation of those terms are thereby questions which the Adjudicator must answer in the exercise of his jurisdiction.  It follows that an error in the identification of the terms or in their interpretation will not be a jurisdictional error: Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd; Clyde Bergemann Senior Thermal Pty Ltd v Varley Power Services Pty Ltd; BMA Coal Operations Pty Ltd v BGC Contracting Pty Ltd.”

(emphasis added)

  1. [42]
    It is not possible “to attempt to mark the metes and bounds of jurisdictional error”[14] however, as McMurdo J held in Northbuild, where it appears that an Adjudicator is not meaning to apply the Contract, as he or she interprets it, but is instead allowing a claim upon some other basis, the position is different, because the Adjudicator is thereby misunderstanding the scope of the Adjudicator’s adjudication.[15]
  2. [43]
    Here, the Adjudicator understood from the outset that there was a construction question in issue before him, recording at paragraph [58], “… the respondent has asserted that the claimant has no entitlement to payment under the provisions of the Contract because the works were taken out of the claimant’s hands.” This is plainly a reference to clause 39.
  3. [44]
    The Adjudicator summarised the parties’ submissions to include:
    1. on behalf of Tomkins:
      1. (i)
        that s 70 of the BIF Act conferred a statutory right to a progress payment for construction work performed;
      1. (ii)
        that s 200 of the BIF Act prohibited the Contract from excluding modifying or restricting the BIF Act such that York’s interpretation of cl 39.4 to 39.6, which suspended or nullified Tomkins’ right to payment would impermissibly exclude, limit or change the effect of s 70 of the BIF Act; and
      1. (iii)
        considered whether authority, including Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd[16] (which I refer to below), meant that an Adjudicator could not ignore a statutory right to a progress payment on the basis that a take-out notice had been issued under the Contract;
    2. on behalf of York:
      1. (i)
        that it was necessary for the Adjudicator to make a finding about the interpretation of the Contract because the issue went directly to Tomkins’ entitlement to payment;
      1. (ii)
        engaged with the proposition that Tomkins’ interpretation of s 70 was “in a vacuum” and that it was important to emphasis certain provisions of the Act in order to decide on the amount of a progress payment, if any, on the date on which any amount becomes payable (referring here to ss 70, 71 and 72 of the Act); and
      1. (iii)
        made submissions in relation to a number of authorities which the Adjudicator set out at some length.[17]
  4. [45]
    The Adjudicator then dealt with the issue regarding the proper construction and the effect of cl 39.4(a) of the Contract in the following way:

“120.In this case, the Payment Claim made on 29 August 2024 was from the reference date of 28 August 2024.  Accordingly, based on the principles of Parrwood, the claimant had a statutory entitlement under s 70 of BIF:

“70Right to progress payments

From each reference date under a construction contract, a person is entitled to a progress payment if the person is carried out construction work or supplied related goods and services, under the contract.” (my emphasis).

  1. Clauses 39.4 and 39.6 of the contract provide as follows:

“39.4Principals’ rights

If the contractor fails to show reasonable caused by the stated date and time, the principal may by written notice to the contractor:

(a)take out of the contractor’s hands the whole or part of the work remaining to be completed and suspend payment until it becomes due and payable pursuant to clause 39.6…

39.6..When work taken out of the contractor’s hands has been completed the Superintendent will assess the cost thereby incurred and will certify as monies due and payable according to the difference between the cost (showing the calculations therefore) and the amount which would otherwise have been paid to the contractor if the work had been completed by the contractor.”

  1. I find these clauses have the effect of taking away the statutory right to payment.  Any attempt to invoke clause 39.6, as submitted by the Respondent, to take away that entitlement, falls foul of s 200 of BIF because it is an attempt to contract out of BIF.  I accept the claimant’s reference to the case of John Holland Pty Ltd v Coastal Dredging & Construction Pty Ltd [2012] QCA 150; [2012] 2 Qd R 435 at [21]–[24] as authority for the prohibition for contracting out.
  2. I therefore am unable to accept the respondent’s submission in at paragraph 14(b) of the respondents further submissions, and the response submissions, that clause 39.6 was not void because the take-out procedure provides for how the construction work is to be valued in accordance with the contract.
  3. There is no need to further consider the respondent’s submissions about Southern Han and Westbourne because they only apply after the service of the take-out provisions which is not the case in this adjudication.
  4. I therefore find that it is not necessary to consider the merits of the contract termination and the respondent’s rights to take out the work, as urged by the respondent at paragraph 8 of its further submissions.
  5. Even if the claimant was in breach of the contract and the respondent was lawfully entitled to rely upon clause 39.4, about which I make no finding, the key issue is that clause 39.6 cannot engage to take away the claimant’s s 70 rights to payment because the claimant’s statutory rights were created from the reference date of 28 August 2024 and ripened by service of the Payment Claim on 29 August 2024.
  6. I find therefore against the respondent regarding the issue of the Claimant’s no entitlement to payment …”

(footnotes omitted, all emphasis in original)

  1. [46]
    The Adjudicator therefore followed the principles in Parwood, being a circumstance where the reference date arose before the take-out notice (as was the factual circumstances in this case) and declined to follow the decision of Southern Han[18] where the take-out notice had been given after the reference date had arisen.  The Adjudicator interpretated cl 39.4 and 39.6 to have the effect of taking away the statutory right to payment, which he found fell foul of s 200 of the BIF Act because he construed it as an attempt to contract out of the Act.
  2. [47]
    It is unnecessary for me to decide whether the Adjudicator was correct or not in that interpretation of the clause; but what the Adjudicator did at paragraphs 120 to 126 of the Adjudication Decision was consider the submissions which had been made, consider the authorities to which he had been referred, and reach a conclusion in relation to his construction of cl 39.4 and 39.6.  The Adjudicator then arrived at his decision by a process which considered the matters set out in s 88(2) of the Act. It seems to me that the Adjudicator came to a view as to what was properly payable, based on what the Adjudicator considered to be the true construction of the Contract.[19]  That seems to me to squarely fall within the valid exercise of an Adjudicator’s jurisdiction being the interpretation of terms of a Contract arrived at by a process which considers the matters set out in s 88(2) of the BIF Act.  Accordingly there is no jurisdictional error in relation to the alleged construction issue. 
  3. [48]
    Whilst that ought to be enough to deal with the first alleged jurisdictional error, I nevertheless consider the correctness of the Adjudicator’s interpretation of the terms of the Contract on this issue. 
  4. [49]
    Clause 37.1 of the Contract provides that Tomkins “will claim payment progressively in accordance with item 28 while WUC is being carried out, at practical completion and at the time for making the final payment claim.”
  5. [50]
    Item 28 of the Contract states (relevantly):

“Progress claims

(subclause 37.1)

  1. (a)
    Times for progress claims 28th day of each month for WUC done to the 28th day of that month, and at the time of practical completion and making the final payment claim.”
  1. [51]
    Section 67 of the BIF Act states:

“67Meaning of reference date

(1)A reference date, for a construction contract, means—

(a)a date stated in, or worked out under, the contract as the date on which a claim for a progress payment may be made for construction work carried out, or related goods and services supplied, under the contract; or

…

(2)However, if a construction contract is terminated and the contract does not provide for, or purports to prevent, a reference date surviving beyond termination, the final reference date for the contract is the date the contract is terminated.”

  1. [52]
    Section 70 of the BIF Act states:

“70Right to progress payments

From each reference date under a construction contract, a person is entitled to a progress payment if the person has carried out construction work, or supplied related goods and services, under the contract.”

  1. [53]
    Sub-sections 75(1) and (2) of the BIF Act state:

“75Making Payment Claim

(1)A person (the claimant) who is, or who claims to be, entitled to a progress payment may give a Payment Claim to the person (the respondent) who, under the relevant construction contract, is or may be liable to make the payment.

(2)Unless the Payment Claim related to a final payment, the claim must be given before the end of whichever of the following periods is the longest—

(a)the period, if any, worked out under the construction contract;

(b)the period of 6 months after the construction work to which the claim relates was last carried out or the related goods and services to which the claim relates were last supplied.”

  1. [54]
    In the circumstances, both parties agreed it was uncontroversial that: 
    1. 28 August 2024 was a date on and from which Tomkins was entitled to make a progress claim under cl 37.1 of the Contract;
    2. on 29 August 2024 Tomkins made a progress claim under cl 37.1 of the Contract;
    3. 28 August 2024 was a “reference date” under the BIF Act;
    4. from 28 August 2024, Tomkins was entitled to a progress payment under the BIF Act for the reference date of 28 August 2024;
    5. from 28 August 2024, for a least a period of six months, Tomkins was entitled under the BIF Act to give a Payment Claim to York for the reference date of 28 August 2024; and
    6. on 29 August 2024, Tomkins made a Payment Claim under the BIF Act for the reference date of 28 August 2024.
  2. [55]
    Clause 39 provides that if Tomkins commits a substantial breach of the Contract, York may give Tomkins a written notice to show cause (cl 39.2).  If Tomkins fails to show reasonable cause by the stated date and time, York may give written notice to Tomkins to take the works out of Tomkins’ hands and to suspend payment until it becomes due and payable pursuant to cl 39.6.  By cl 39.6, when the work taken out of Tomkins’s hands has been completed then the Superintendent will assess the costs thereby incurred and will certify as monies due and payable accordingly, the difference between that cost and the amount which would otherwise have been paid to Tomkins if the work had been completed by Tomkins. 
  3. [56]
    York contends that the Principal’s rights that arise under cl 39.4(a) of the Contract which takes out of the contractor’s hands the whole or part of the work remaining to be completed and, “suspend(s) payment until it becomes due and payable pursuant to sub-clause 39.6”, means that the clause suspends all rights to payment, whether there is a right to a progress payment or a final right to payment until the works have been completed.  Operating in this way, York contends that cl 39 provides the Principal with the security that it can take the work out of the contractor’s hands, complete it, and if it costs more to complete the work then it can set off against whatever it might otherwise owe to the contractor that which it has cost York to complete the works.  As such York contends that the phrase “suspend payment” means a suspension of all rights, including the right to be paid under a Payment Claim which has been the subject of Adjudication.  On York’s construction of cl 39, that right will only arise under cl 39.6 when the whole of the works has been completed.  York accepts that that is a draconian outcome for the contractor but submits that authority compels that conclusion.
  4. [57]
    In support of this York relies upon the decision of Southern Han[20] in which the High Court considered a term in a contract indistinguishable to cl 39 in the current Contract.
  5. [58]
    In Southern Han, the parties contracted for the construction of an apartment block in New South Wales.  The Contract provided for progress claims to be made on the eighth day of each calendar month for work under the Contract done to the seventh day of that month.  On 27 October 2014 the Principal, Southern Han, gave the contractor, Lewence a take-out notice.  Lewence asserted that the take-out notice amounted to a repudiation of the Contract by Southern Han, accepted the repudiation and purported to terminate the Contract.  On 4 December 2014, Lewence served on Southern Han a purported Payment Claim under the equivalent New South Wales Building Payment Act[21] for work done up to and including the day of the take-out notice, 27 October.  Lewence then purported to make an adjudication application, but Southern Han contended that the Adjudicator lacked jurisdiction.  The Adjudicator rejected Southern Han’s submission and purported to determine the application.
  6. [59]
    York relies upon [78] of the plurality’s decision:

“The suspension of payment was a suspension of the totality of the rights conferred and obligations imposed in relation to payment by cl 37.  The rights so suspended included Lewence’s right to make a progress claim under cl 37 for work carried out up to the time of the work being taken out of its hands.”

(emphasis added)

  1. [60]
    Whilst the clause in Southern Han is identical to cl 39 in the current case, the construction of it, and the High Court’s statement at [78], are not so easily applicable.  That is because the court concluded that the question of the entitlement to be paid on the Payment Claim turned on whether the contractor was entitled to a progress payment in relation to the work carried out and whether that entitlement turned on whether a reference date under the Contract had then come to exist in relation to the work.  Put another way, the existence of a reference date under the construction Contract was a pre-condition to the making of a valid Payment Claim, and as no such reference date existed, all the rights were suspended, including rights in relation to a Payment Claim.[22]  The court was not there considering a circumstance, as here, where a valid Payment Claim had already been made before the take out clause was relied upon.
  2. [61]
    I accept Tomkins’ submission that the Adjudicator was in fact correct to prefer the approach in Parrwood, that although it is settled that after the valid service of a take-out notice the contractor’s rights are suspended, including the right to claim progress payments, nothing in the Contract, and no exercise of powers under the Contract, could alter or modify, let alone extinguish, the rights already created by statute. Here, that includes the statutory right to make a Payment Claim based on a reference date, and that right could not be taken away by cl 39.6.
  3. [62]
    I would not therefore have found that the Adjudicator was in error in any event in relation to the construction question.
  4. [63]
    Even if the construction issue had been more finely balanced, which I do not consider it is, the ‘draconian’ outcome for which York contends is, in my view, so inconsistent with the objects and purposes of the BIF Act, I would have been persuaded in any event to resolve ambiguity in favour of the construction that led to the ‘quick and inexpensive’ resolution of the payment. That is not the one for which York contends.

The alleged consideration error

  1. [64]
    As set out at [15] above, there are two aspects to the alleged consideration error, but they both broadly pertain to the alleged failure by the Adjudicator to consider (or properly consider) the submissions and the evidence in relation to value of the claim for the façade.
  2. [65]
    The claim for the façade was originally made by Tomkins at $11.8 million but later reduced to $8.1 million. The Adjudicator allowed $11.8 million, meaning, York submits, that the Adjudicator must have ignored the evidence and submissions containing the acceptance by Tomkins that the claim for that sum was reduced to $8.1m. Next, York contends the Adjudicator overlooked that the deduction for the façade had changed from the previous adjudication from $4 million to $11 million, both of these aspects can substantially, be dealt with together.
  3. [66]
    Pursuant to s 88(2) of the BIF Act the Adjudicator is required to consider only certain matters.  The section provides:

“88Adjudicator’s decision

(1)…

(2)In deciding an adjudication application, the Adjudicator is to consider the following matters only—

(a)the provisions of this chapter and, to the extent they are relevant, the provisions of the Queensland Building and Construction Commission Act 1991, part 4A;

(b)the provisions of the relevant construction contract;

(c)the Payment Claim to which the application relates, together with all submissions, including relevant documents, that have been properly made by the claimant in support of the claim;

(d)the payment schedule, if any, to which the application relates, together with all submissions, including relevant documents, that have been properly made by the respondent in support of the schedule;

(e)the results of any inspection carried out by the Adjudicator of any matter to which the claim relates.”

  1. [67]
    A failure by an Adjudicator to consider a submission will, if material, constitute a jurisdictional error.[23]  What constitutes a failure to consider all submissions including relevant documents, is a factual question in any particular case.  York contends that the evidence demonstrates that the Adjudicator did not consider all the submissions and the relevant documents for the reasons which are set out below.  Here it is necessary to set out at some length the material which the Adjudicator did, or did not, consider for the purpose of deciding this alleged jurisdictional error.
  2. [68]
    Tomkins Payment Claim 35 was for the construction of the building façade, being a system which comprised curtain walls, windows and doors.  The claim was for a sum of $11,832,295.38 (excl. GST).  That claim was said to reflect progress of nearly 73% of the work for that item, the total value of it exceeding $16.3 million.  The claim for $11.8 million for the façade was the single largest component of the Payment Claim. 
  3. [69]
    York responded to Payment Claim 35 scheduling $Nil as payable because, according to York, the façade was entirely defective, and the cost of rectification was at least equivalent to the value which Tomkins had claimed. 
  4. [70]
    By its Adjudication Submissions,[24] Tomkins set out (over some 117 pages) its submissions in relation to, amongst other things, the claim for the façade.  Included in those submissions at paragraph [166] was a table in which Tomkins set out a summary of the amounts to be determined in the application, including the reference to where that amount was dealt with in the evidence or in an expert’s report.  In respect of the façade, Tomkins set out the following:

Claim

A. Claimed in PC 35 (“This Claim”)

B. Previously Claimed in PC 35

C. “Total Completed to Date” in PC 35

D. Disputed Amount [A – C]

Statutory Declaration(s) /Expert Report

Façade System

$11,832,295.38

$0.00

72.57%

$8,115,252.69

Rodney McKenzie, section H & Benjamin Bowden, section A

  1. [71]
    That Table is the first occasion in the submissions that identified the reduced amount of $8.1 million for the façade claim.
  2. [72]
    The submissions went on to identify:
    1. at paragraph [277], submissions about the façade system by reference to Mr McKenzie’s statutory declaration, breaking the claim down into categories of curtain walls, aluminium windows and doors;
    2. that in the Payment Schedule, the Superintendent had certified $Nil for the façade system which therefore represented a difference of $11,832,295.38 (excl. GST);
    3. at paragraph [279] made reference to Mr McKenzie’s statutory declaration and the basis for his view that the Superintendent’s certification as $Nil was “baseless”;
    4. at paragraphs [280] to [294] made detailed submissions in relation to its claim in respect of the façade system;
    5. at paragraph [295] identified the relevant questions for the Adjudicator as follows:

“(a)which party is responsible for design and design certification under the Contract?

[Answer:York]

  1. has Tomkins performed any defective work” on the Façade System?

[Answer:no, Tomkins has installed the Façade System based on approved shop drawings and physical samples)

  1. even assuming Tomkins were responsible for a Form 15 / FP1.4 certification of York’s design, and Tomkins had claimed payment for “defective work” in the Payment Claim, is the Superintendent entitled to deduct the full value of works performed to date?

[Answer:no, set out below the plain language of Clause 29.3 [Defective Works] requires that York first incur actual costs on remedial works before any deduction could be made for alleged “defective works”]

  1. On the basis of the evidence put forward by Mr McKenzie and Mr Marr, and without insufficient reasons for non-payment provided in the Payment Schedule, the Adjudicator should – in accordance with the principles outlined in Ceerose – find that Tomkins is entitled to full payment of the amount claimed for works in the Payment Claim.”

(emphasis added)

  1. [73]
    Numerous references in Tomkins’ submissions refer to Mr McKenzie’s statutory declaration which included a concession by Mr McKenzie that Tomkins was not pursuing the full value of $11.8 million in respect of the façade system but that:

“214The amount claimed in PC35 was based on the progress of work completed as at 29 August 2024.

215Importantly, Tomkins does not pursue the value of unfixed materials for the Façade System in this Adjudication Application.  Excluding the value of unfixed materials that appear in PC 35 (amounting to $3,717,042.69) results in a figure of $8,115,252.69.  It is this sum, $8,115,252.69 that Tomkins seeks to recover in this application.”

(emphasis added)

  1. [74]
    In its Adjudication submissions in response, York did not acknowledge the statement of Mr McKenzie’s that the value of the claim was the $8.1 million figure, and rather sought to explain the difference between what it asserted was Tomkins’ claim ($11.8 million) and the value of the façade system in the opinion of York’s expert as $Nil, referring to the expert’s valuation as “total value $”.
  2. [75]
    Elsewhere York continued to adopt the $11.8 million figure including references at paragraphs [476], [479], [579] and [1391] of its submissions to that figure.
  3. [76]
    The Adjudicator’s Adjudication Decision comprises some 147 pages.  Relevantly the Adjudicator summarised both parties’ submissions between paragraphs [85] to [119] of the decision.  That summary included references to the various authorities to which the Adjudicator had been referred but did not make reference to the reduced value of the claim. 
  4. [77]
    The Adjudicator then identified that, having dealt with the “several important issues arising out of the contending submissions” he would proceed with the “calculation/valuation process”.[25]  Specifically at paragraphs [414] to [449] he valued the façade claim which he said was the $11.8 million figure. It was not. The figure was the revised sum of $8.1 million. York submits that the Adjudicator must not have properly considered all the submissions and evidence as he was required under s 88(2) of the BIF Act to have made such a significant error.
  5. [78]
    York relies upon what it submits was a similar circumstance in Theiss Pty Ltd v Warren Brothers Earthmoving Pty Ltd & Ors.[26]  There, a claimant made a Payment Claim of some $101,000, which it later accepted ought to have been some $40,000. That was communicated in the submissions to the Adjudicator who nevertheless assessed the claim on the claimed amount rather than on the conceded amount. A Lyons J (as her Honour then was) found that the Adjudicator could not have considered the parties’ submissions and the material before him in reaching the figure of $101,000 because he did not actively take them into his reasoning process and weigh them up along with other evidence he was considering.[27]
  6. [79]
    In Thiess, the Adjudicator had provided a statement that:

“(a)The Respondent’s concern and interpretation of my conduct in this regard is reasonable and justified given the manner in which the decided amount relating to that component of the claim was presented to the parties, and I believe an acknowledgement and affirmation of its mistake identified by the Respondent is appropriate in the circumstance. Although I was fully aware of the submissions made by the parties as it relates to the concession made by the claimant and acknowledged by the respondent, I failed to remind myself of the concession during my deliberations and final drafting of the decision, and I accept full responsibility for my mistake and any resulting consequence or action to be taken in this regard by the Court or by the Registrar.  Simply put, ‘I forgot’.”

(emphasis added)

  1. [80]
    No such similar statement is made by the Adjudicator here, and there is no evidence regarding how the mistake came to be made.
  2. [81]
    While it is generally accepted that a breach of duty in s 88(2) of the BIF Act, if material, would amount to jurisdictional error[28] the content of what is required by an Adjudicator is less easily characterised.
  3. [82]
    Bond J in Acciona described it as “the active process of intellectual engagement with the issues.”[29]  That terminology, however, was not adopted by the New South Wales Court of Appeal in Ceerose[30] where the court said at [62]:

“The attempt to articulate, using other language, what is required by the verb “consider” will usually be misconceived. Certainly, it is misconceived in the present statutory circumstance. 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. The mental processes of the adjudicator will be entirely opaque, except to the extent that they are revealed in his or her reasons. However, as already noted, the failure to identify a particular claim or response in reasons will not of itself demonstrate that the adjudicator failed to consider it. That is so for a number of reasons.”

  1. [83]
    The court went on to identify four groups of reasons including:
    1. it is unnecessary for reasons to list every matter considered by the decision-maker, selection being a necessary part of the process;
    2. the scope of reasons reflect practical considerations, such as time frames;
    3. the volume of material; and
    4. the substance or otherwise of the submission.
  2. [84]
    While the court does not need to go through the Adjudication Decision with a fine-tooth comb,[31] there does need to be more than a boilerplate statement to the effect that that the evidence and the submissions had been considered in accordance with s 88(2).
  3. [85]
    In Niclin Constructions[32] Applegarth J explained why a failure to refer to a particular submission in an Adjudicator’s reasons does not automatically reveal a failure to consider, as required by s 88(2) of the BIF Act. His Honour stated:

“[28]In general terms, there is a dividing line between a deficiency of reasons that demonstrates that the adjudicator has not performed the decision-making task in compliance with the Act and a deficiency in reasons that does not. On which side of the dividing line certain reasons fall depends on the context. The adequacy of reasons is assessed in the context of an Act under which adjudicators provide their determinations in a ‘somewhat pressure cooker environment’.

[29]Within that statutory context there are a wide variety of disputes, including complex questions of fact that may require an adjudicator to briefly explain why one party’s evidence was preferred over another. Depending upon the circumstances, it may be sufficient if the reasons indicate why the adjudicator arrived at the decision. In other cases the reasons may in all the circumstances reveal a failure to consider submissions. They may reveal ‘no intellectual justification’ for the decision that was made. That said, ‘intellectual justification’ is a gloss on the duty ‘to consider’ and courts, including the High Court, have warned about the use of that label.

[30]A question may arise as to what specific inference is to be drawn from the absence of reference to a particular submission or contention in the adjudicator’s reasons. Payne JA in Ceerose recently explained:

‘There are a range of possible explanations, only one of which is that the material was not considered. Another is that the claim was readily seen to be well-founded and the submissions to the contrary as lacking in substance. However, the latter would be a good reason to omit reference to the issue in the reasons. If the submission had been misunderstood, the facts mistaken or the law wrongly identified, that might explain absence from the reasons of something expected to be addressed, but not lack of consideration. Of course, the duty to consider a submission is separate from the absence of any duty to deal with it correctly, whether in law or in fact. The point is rather that an unreviewable error may explain why the reasons do not advert to a particular matter.’

[31]The fact that an adjudicator does not refer in reasons to all of the submissions made on an issue does not necessarily mean that he or she did not consider them.

[32]In Avopiling (NSW) Pty Ltd v Menard Bachy Pty Ltd, Sackar J stated:

‘Provided it is apparent that the adjudicator has considered pertinent issues in good faith, very considerable latitude in my view should be afforded to an adjudicator as to the manner and form of the determination. To become too pedantic about the way in which the adjudicator has drafted a determination is to introduce an element of artificiality such as might well defeat the object and purpose of the Act and the aim of the process entirely.’

[33]Having regard to the nature of the issue that the adjudicator had to decide, I am not satisfied that he failed to give reasons for his decision, or that his reasons are so inadequate that they reveal jurisdictional error, or that the adjudicator has not performed his statutory task.”

  1. [86]
    This is a difficult issue to resolve because the error the Adjudicator made was not solely his own. Whilst Tomkins had made the concession in Mr McKenzie’s statutory declaration that it did not seek the full $11.8 million claim, it sought $8.1 million, York repeatedly made reference to the $11.8 million sum when contending that the adjudicated amount ought to be $Nil. York’s submissions, and the Adjudicator’s findings, concentrated on the submissions that the works on the façade were defective, leading to the conclusion contended for by York, that the Adjudicated amount ought to be $Nil. Whether the work for which the claim was made was $11.8m or $8.1m, York’s primary position was that the works were so defective no amount ought to be allowed at all. That was the issue that the Adjudicator engaged with, and it cannot be said (and was not submitted) that he erred in so engaging. Furthermore, the question is not whether the Adjudicator was wrong in adopting the figure of $11.8 million – plainly he was – the real question was, did the Adjudicator consider the material?
  2. [87]
    Ultimately, I conclude that the Adjudicator must not have considered (within the meaning of s 88(2) of the BIF Act) the submissions and material in relation to the correct amount claimed for purpose of making the assessment which he did because:
    1. he repeatedly referred to the incorrect sum[33] and made no mention of the sum actually claimed;
    2. he described that the “whole amount” was in contest, when it was not, only $8.1 million was;
    3. once he rejected York complaints about the façade and therefore their dispute as to the value of the works, he concluded he was entitled to “accept the claimant’s claim of $11,832,295.38”[34] without any consideration of the evidence as to actual value. Had he done so, he would have reached the conclusion that the value was $8.1 million, not $11.8 million;
    4. the statement at paragraph [411] of the Adjudication Decision that if he had difficulty in valuing the claim from the primary documents, then he would “seek assistance” from the secondary documents, including declarations and expert reports, in conjunction with the statement in (c) above, suggests he did not seek such assistance from those documents. I take that to demonstrate that he did not consider those documents;
    5. to the extent that the Decision referred to Mr McKenzie’s statutory declaration,[35] it did so only by reference to Tomkins’ submissions at paragraphs [277] to [295], and not to the declaration itself.
  3. [88]
    That the Adjudicator was arguably led into the error by York is not the point. The point is that the Adjudicator must not have properly considered the submissions and the evidence, in particular Mr McKenzie’s statutory declaration, or else he could not have made such a material error. The reasons therefore do not reflect a genuine consideration of the mandatory matters in s 88(2).
  4. [89]
    A failure to consider a party’s submission as to the quantum of a claim can amount to jurisdictional error.[36]  Here, the sum involved is so significant – a difference of some $3.7 million – that the nature, gravity and effect of it are relevant matters to take into account.[37]  I conclude that the failure to consider the evidence and the submissions are of such significance that it constitutes a failure by the second respondent  to comply with the essential requirements of the BIF Act for a valid decision.
  5. [90]
    Jurisdictional error is therefore made out in respect of this ground.
  6. [91]
    Whilst that is sufficient to grant the relief sought by York, I deal briefly with the final issue being in relation to the deduction for the façade.
  7. [92]
    The Adjudicator decided that the deduction for the façade was previously valued by another Adjudicator at $4.7 million, and by s 87(2) of the BIF Act he was required to give the same value unless “… the claimant or the respondent satisfies the adjudicator … that the value of the works … has changed.” The Adjudicator then found that there had been a previous decision as to value at $4.7 million and noted “… there are no submissions that the value has changed.”[38]  That was incorrect.  York had submitted at paragraph [482] of its submissions that in fact the value had changed such that the deductions should now be $11.8 million.
  8. [93]
    The Adjudicator’s error was repeated at paragraph [870], and lead to the Adjudicator’s conclusion at [872] that the correct figure to adopt was $4.7 million.
  9. [94]
    However, inconsistently with his statement at paragraphs [866] and [870] that there were no submissions that the value of the deductions had changed the Adjudicator had, earlier, correctly recorded that the value of the deduction had increased.[39] Tomkins submits that because the Adjudicator had so correctly identified the change in value of the deduction, and then proceeded to explain why he did not accept the submissions on the changed value, the court should conclude that the Adjudicator did in fact engage with, and properly consider, the submissions in relation to the deduction issue.
  10. [95]
    I accept that submission. As the Court of Appeal set out in Ceerose,[40] there may be a range of possible reasons or explanations for why a particular submission, (in this case previously referred to, but not then returned to) might not have been dealt with in greater detail. I cannot be satisfied that what has occurred here is that the Adjudicator failed to consider that which he had positively identified at paragraphs [866] and [870]. The deduction is in a different category to the façade claim above because there the difference was ignored and therefore not considered at all.  Accordingly, I do not find this ground made out.             

Orders sought

  1. [96]
    Given that I have only found a jurisdictional error in relation to a discrete component of the Adjudication, it is open to consider a severance of the part of the decision affected by the jurisdictional error (s 101(4) BIF Act), or alternatively to remit that part back to the Adjudicator for further consideration. The parties agreed that if that was the conclusion that I reached, further submissions ought to be made on that point. It may well be that agreement can be reached as to the form of order.
  2. [97]
    I will therefore hear the parties in relation to this issue.

Footnotes

[1](2020) 4 QR 410 (“Acciona”).

[2]Chevron Park Pty Ltd v Groupline Constructions Pty Ltd [2024] QSC 202 at [30].

[3]Acciona at 422 [34].

[4]  Ibid at 422–3 [35].

[5]  Ibid at 424 [36].

[6]  Ibid at 426 [37].

[7]  Ibid at 427–8 [41] and the cases referred to therein.

[8]  Ibid at 428 [42].

[9]Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 3(2)(c)(i)-(iv).

[10]Lendlease Building Pty Ltd v BCF Airport Systems Pty Ltd & Ors [2024] QSC 164 at [103] (“Lendlease”).

[11]Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at [40]-[41].

[12]Acciona at [22].

[13]  [2015] 1 Qd R 463 at [29] (“Northbuild”).

[14]Kirk v Industrial Court  (NSW) (2010) 239 CLR 531, 573 [71].

[15]Northbuild at [30].

[16][2020] NSWSC 208 (“Parrwood”); appeal against decision dismissed [2020] NSWCA 172.

[17]  Adjudication Decision of 10 February 2025 at [104] - [119].

[18]Southern Han Breakfast point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340 (“Southern Han”).

[19]Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385 at [52].

[20]  (2016) 260 CLR 340.

[21]Building and Construction Industry Security of Payment Act 1999 (NSW).

[22]Southern Han at [2].

[23]Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd (No 2) [2024] NSWSC 1223 at [193]–[197]; Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd & Ors [2012] QSC 373.

[24]  Exhibit SCB-18 to the affidavit of S C Burton sworn 15 February 2025.

[25]  Adjudication Decision of 10 February 2025 starting at [389].

[26]  [2012] QSC 373 (“Thiess”).

[27]  Ibid at [56].

[28]Acciona at [35]; S.H.A Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2020] QSC 307 at [47]-[48]; Lendlease at [198].

[29]Acciona at [35].

[30]Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225 (“Ceerose”).

[31]Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd (2018) 98 NSWLR 712 at [17].

[32]Niclin Constructions Pty Ltd v Robotic Steel Fab Pty Ltd [2023] QSC 218.

[33]  Adjudication Decision of 10 February 2025 at index XIV(3)(a), heading above [414] and Annexure LM1.

[34]  Adjudication Decision of 10 February 2025 at [449].

[35]  Adjudication Decision of 10 February 2025 at [416].

[36]Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd (No 2) [2024] NSWSC 1223 at [193]–[197].

[37]Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2007] NSWSC 941 which was followed in QCLNG Pipeline Pty Ltd v McConnell Dowell Constructions (Aust) Pty Ltd and Consolidated Contracting Company Australia Pty Ltd & Anor [2011] QSC 292.

[38]  Adjudication Decision of 10 February 2025 at [866].

[39]  Adjudication Decision of 10 February 2025 at [414].

[40]Ceerose at [62].

Close

Editorial Notes

  • Published Case Name:

    York Property Holdings Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd

  • Shortened Case Name:

    York Property Holdings Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd

  • MNC:

    [2025] QSC 44

  • Court:

    QSC

  • Judge(s):

    Treston J

  • Date:

    18 Mar 2025

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2025] QSC 4418 Mar 2025Application for judicial review of adjudicator's decision for jurisdictional error: Treston J.
Notice of Appeal FiledFile Number: CA 1112/2520 Mar 2025Notice of appeal filed.
QCA Interlocutory Judgment[2025] QCA 3925 Mar 2025Application for interim relief: Flanagan JA.

Appeal Status

Appeal Pending

Cases Cited

Case NameFull CitationFrequency
Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd(2020) 4 QR 410; [2020] QSC 133
2 citations
Jump To
Cite 1 - (2020) 4 QR 410
Cite 2 - (2020) 4 QR 410
Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225
2 citations
Jump To
Cite 1 - (2023) 112 NSWLR 225
Cite 2 - (2023) 112 NSWLR 225
Chevron Park Pty Ltd v Groupline Constructions Pty Ltd [2024] QSC 202
2 citations
Jump To
Cite 1 - [2024] QSC 202
Cite 2 - [2024] QSC 202
Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385
2 citations
Jump To
Cite 1 - (2005) 63 NSWLR 385
Cite 2 - (2005) 63 NSWLR 385
Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd (2018) 98 NSWLR 712
2 citations
Jump To
Cite 1 - (2018) 98 NSWLR 712
Cite 2 - (2018) 98 NSWLR 712
John Holland Pty Ltd v Coastal Dredging & Construction Pty Limited[2012] 2 Qd R 435; [2012] QCA 150
2 citations
Jump To
Cite 1 - [2012] QCA 150
Cite 2 - [2012] 2 Qd R 435
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
2 citations
Jump To
Cite 1 - (2010) 239 CLR 531
Cite 2 - (2010) 239 CLR 531
Lendlease Building Pty Ltd v BCS Airport Systems Pty Ltd [2024] QSC 164
2 citations
Jump To
Cite 1 - [2024] QSC 164
Cite 2 - [2024] QSC 164
Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd (No 2) [2024] NSWSC 1223
3 citations
Jump To
Cite 1 - [2024] NSWSC 1223
Cite 2 - [2024] NSWSC 1223
Cite 3 - [2024] NSWSC 1223
Niclin Constructions Pty Ltd v Robotic Steel Fab Pty Ltd(2023) 16 QR 336; [2023] QSC 218
2 citations
Jump To
Cite 1 - [2023] QSC 218
Cite 2 - [2023] QSC 218
Northbuild Construction Sunshine Coast Pty Ltd v Beyfield Pty Ltd[2015] 1 Qd R 463; [2014] QSC 80
2 citations
Jump To
Cite 1 - [2015] 1 Qd R 463
Cite 2 - [2015] 1 Qd R 463
Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWCA 172
1 citation
Jump To
Cite 1 - [2020] NSWCA 172
Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWSC 208
2 citations
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Cite 1 - [2020] NSWSC 208
Cite 2 - [2020] NSWSC 208
Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340
3 citations
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Cite 1 - (2016) 260 CLR 340
Cite 2 - (2016) 260 CLR 340
Cite 3 - (2016) 260 CLR 340
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
QCLNG Pipeline Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2011] QSC 292
2 citations
Jump To
Cite 1 - [2011] QSC 292
Cite 2 - [2011] QSC 292
SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2020] QSC 307
2 citations
Jump To
Cite 1 - [2020] QSC 307
Cite 2 - [2020] QSC 307
Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd [2012] QSC 373
3 citations
Jump To
Cite 1 - [2012] QSC 373
Cite 2 - [2012] QSC 373
Cite 3 - [2012] QSC 373
Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2007] NSWSC 941
2 citations
Jump To
Cite 1 - [2007] NSWSC 941
Cite 2 - [2007] NSWSC 941

Cases Citing

Case NameFull CitationFrequency
York Property Holdings Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd [2025] QCA 392 citations
1

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