Exit Distraction Free Reading Mode
- Selected for Reporting
[2024] QSC 235
This case concerned whether the first respondent, who applied for adjudication of a payment claim, complied with s 79(4)(a) Building Industry Fairness (Security of Payment) Act 2017 (“the Act”) despite the first respondent providing the applicant with an inexact copy of the adjudication application. The applicant argued that there was non-compliance and sought declarations that the adjudication was void. Justice Copley held that the first respondent was in compliance with s 79(4)(a) of the Act. His Honour considered that this was because the definition of “copy” in s 79(6) encompassed a document containing details of the adjudication application provided by the registrar such that the first respondent providing this to the applicant satisfied the obligation in s 79(4)(a) of the Act. Accordingly, Copley J refused the application for a declaration that the adjudication decision was void.
Copley J
3 October 2024
The applicant and first respondent were parties to a contract in relation to a construction project. Two applications were made by the first respondent pursuant to Ch 4, Pt 4 Building Industry Fairness (Security of Payment) Act 2017 (“the Act”) seeking payment of monies allegedly owed under the contract. The relevant application was considered by the third respondent, and the third respondent purportedly determined an adjudicated amount. [5]–[8].
When the first respondent applied for the adjudication of the payment claim through its solicitor, the solicitor uploaded 11 PDF files. After submitting that application, he received an email from the QBCC registry which contained a PDF copy of the adjudication form, which was not an exact copy of the electronic form used when the solicitor uploaded the claim. The first respondent’s solicitor subsequently emailed the applicant’s solicitor the 11 PDF documents initially uploaded as well as a copy of the adjudication application form. However, seven sub-contract documents were not sent. [13], [15]–[17].
The applicant submitted that the adjudication decision is void because the first respondent failed to comply with s 79(4)(a) of the Act as the first respondent did not give the applicant a complete copy of the adjudication application and supporting submissions. [18]. The applicant also relied on the principle in Iris Broadbeach Business Pty Ltd v Descon Group Australia Pty Ltd [2023] QSC 290, [96]–[97] that substantial compliance for an adjudication application is insufficient and strict compliance with the statutory requirements is necessary.
Section 79(4)(a) requires the claimant to give the respondent, inter alia, a copy of the adjudication application. “Copy” is defined in s 79(6) as including “a document containing details of the application given to the claimant by the registrar for the purpose of the claimant complying with the claimant’s obligation under subsection (4)(a).”
Justice Copley considered it significant that the previous version of s 79 did not contain a definition of “copy” and considered that in requiring that a copy of an adjudication application be given to a respondent, s 79(4)(a) of the Act, if considered on its own, can be understood to impose a requirement to provide a respondent with a duplicate or an exact likeness of the adjudication application which had been provided to the registrar. However, his Honour held that s 79(4)(a) must be considered with s 79(6) because s 79(6) defines “copy” when the term is used in conjunction with “an adjudication application”. That term includes a document containing details of the application given to the claimant by the registrar for the purpose of the claimant complying with the obligation under s 79(4)(a). That obligation is to give a copy of the adjudication application to a respondent. [28], [31].
Justice Copley considered that the correct construction of s 79(6) is to be understood as:
“… enlarging the ambit of what constitutes a copy of an adjudication application rather than as enlarging the ambit of a claimant’s obligation under s 79(4)(a). In providing that a copy of an adjudication application includes a document that is something other than an adjudication application s 79(6) discloses an intention to confer a meaning additional to the ordinary meaning of ‘copy’. This provision renders a document of a particular description (one containing details of the adjudication application) provided by a specified person (the registrar) to be a copy of the adjudication application for the purpose of the claimant satisfying the obligation imposed on it by s 79(4)(a). Section 79(6) cannot sensibly be construed as enlarging the ambit of a claimant’s obligation under s 79(4)(a)”. [33]. (footnote omitted)
Accordingly, his Honour held that the first respondent did not fail to comply with s 79(4) because the first respondent’s solicitor gave the applicant’s solicitor the document given to him by the registrar. As such, the application for a declaration that the adjudication decision is void was refused. [35].
A Lukacs