Queensland Judgments
Authorised Reports & Unreported Judgments
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Iris Broadbeach Business Pty Ltd v Descon Group Australia Pty Ltd & Anor

Unreported Citation:

[2023] QSC 290

EDITOR'S NOTE

This case turned on the proper interpretation of various provisions of the Building Industry Fairness (Security of Payment) Act 2017. The first respondent commenced an adjudication under the Act, and the applicant contested the jurisdiction of the adjudicator. In particular, the applicant contended that they were not duly served with a copy of the approved form for the commencement of an adjudication application as required under s 79(2) and s 79(3). The Court accepted that the document served on the applicant was not a copy of the adjudication application and was not in the approved form. As such, the adjudicator’s decision was invalid for want of jurisdiction.

Williams J

15 December 2023

The applicant was the Principal and the first respondent was the Contractor in relation to a construction contract governed by the Building Industry Fairness (Security of Payment) Act 2017 (“BIF Act”). [1]. The Contractor purported to commence an adjudication application under s 79 of the BIF Act against the Principal. [1]. Under s 79(2) of the BIF Act, an adjudication application must be in the approved form, and under s 79(3) “a copy of an adjudication application must be given to the respondent”. [22]. Compliance with these provisions is necessary to enliven the jurisdiction of an adjudicator under the regime.

Section 48 of the Acts Interpretation Act 1954 deals with approved forms. Under that provision, approved forms are to meet certain formal requirements including that they must be given a unique number, must have a heading stating the authorising law and indicating the form’s purpose, and the approval or availability of a form must be notified in the gazette or on a relevant website. [39]. Notably, there are no gazetted forms under the BIF Act.

There are two relevant forms available on the QBCC website that can be used to commence adjudication applications. The “Manual Form” can be printed and completed, while the substantially identical “Electronic Form” can be completed and submitted to the QBCC registry online. [43]–[45], [80].

In this case, the Contractor completed and submitted the Electronic Form. The Contractor then received an email from the QBCC stating “You recently submitted a BIF Adjudication Application at QBCC … Please see attached PDF for a copy of your form submission”. [49]. The attached PDF was referred to as the “QBCC PDF Form”. The QBCC PDF Form largely incorporated the responses entered by the Contractor into the Electronic Form. [47], [48]. However, the QBCC PDF Form omitted some information that appeared in the Electronic Form such as the list of documentation relied on in support of the application and the information in respect of adjudicators fees. [76]. The QBCC PDF Form is not available on the QBCC website; a copy is only sent after the Electronic Form is submitted. [46].

The QBCC PDF Form was later served on the Principal. A dispute arose as to whether the QBCC PDF Form was an approved form for the purposes of s 79(2) and whether a copy of that form was a copy of the adjudication application for the purposes of s 79(3).

As to the first question, the Court held that the QBCC PDF Form was not a document “in the approved form”. [60]. The approved form is the form approved for the purpose of a claimant applying to the registrar for an adjudication of a payment claim. [57]. “Logically, this cannot be what is provided back from the QBCC registry following submission of an adjudication application”. [58]. As to the second question, the Court held that a copy of the QBCC PDF Form was not a copy of the adjudication application. [101]. Strict compliance with the requirements of the adjudication regime under the BIF Act is necessary. [96]. The adjudication application was the document lodged with the QBCC registry, being the Electronic Form. [98]. As noted above, there were differences between the Electronic Form and the QBCC PDF Form which were not trivial. [99]. As such, the Contractor did not serve a copy of the adjudication application on the Principal as required by s 79(3), and as a result the adjudicator lacked jurisdiction.

Notably, the parties were also in dispute as to the validity of the payment claim that gave rise to the adjudication. The Court held that the relevant payment claim was not valid as it did not contain a sufficient description or identification of the actual work undertaken and was not accompanied by sufficient supporting documentation. [168], [171]. The Contractor sought to argue that if some aspects of the payment claim were sufficiently particularised, while other aspects were not, the defective aspects could be severed from the remainder under s 101(4) of the BIF Act. [177]. Under the provision, if only part of an adjudicator’s decision is affected by error, the court may sever that part. [176]. The Court rejected the Contractor’s submissions. A valid payment claim is a precondition to the adjudicator’s jurisdiction. [187]. The invalidity of the payment claim goes to the adjudicator’s jurisdiction in its entirety, and as such there could be no severance. [188]–[190].

L Inglis

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