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[2025] QSC 96
This applicant sought to have an adjudication decision under the BIF Act set aside for jurisdictional error, on the grounds that the decision was based on an invalid payment claim, with the invalidity arising because of a failure of the payment claim to comply with s 75(2)(b) BIF Act. Considering both the interpretation of the provision and whether or not the provision constituted a “jurisdictional fact” the satisfaction of which was a precondition for the valid exercise of the adjudicator’s jurisdiction, her Honour concluded that the payment claim failed to comply with the section and that the noncompliance meant that the adjudicator lacked jurisdiction to make a decision based on that payment claim.
Hindman J
12 May 2025
The applicant sought to have an adjudication decision under the Building Industry Fairness (Security of Payment Act 2017 (“BIF Act”) set aside for jurisdictional error. [1]. The alleged error was that the decision was based on an invalid payment claim; specifically, that it was invalid for having been sent more than six months after the last piece of work was completed in respect of which a claim for payment was made in the payment claim. [2].
The points which arise for noting are the proper interpretation of s 75(2)(b) BIF Act, and whether the satisfaction of the section is a “jurisdictional fact” and a precondition of a valid adjudication decision (sometimes referred to as a “Category 1” requirement of the BIF Act).
Interpretation of s 75(2)(b)
Section 75(2)(b) of the BIF Act states:
“(2)Unless the payment claim relates to a final payment, the claim must be given before the end of whichever of the following periods is the longest
(a)…
(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.”
Her Honour considered the New South Wales authority of Estate Property Holdings Pty Ltd v Barclay Mowlem Construction Ltd (2004) 61 NSWLR 515. [24]. That decision, and subsequent decisions, dealing with the equivalent New South Wales provision concluded that the section required that a payment claim was valid so long as one of the tasks for which payment was sought by the payment claim was carried out within 12 months (being the period under the New South Wales legislation) before service of the payment claim. [24]–[27].
The respondent argued that such an interpretation would be nonsensical. [28]–[29].
Her Honour concluded that the New South Wales approach was the correct approach on the basis that such an interpretation was consistent with the rest of s 75 and gave effect to the words “to which the claim relates” in s 75(2)(b). [30]–[31].
Is the requirement in s 75(2)(b) a “jurisdictional fact”?
Whether the section creates a jurisdictional fact, meaning a state of affairs which must actually exist in order for an adjudicator under the BIF Act to exercise their power, is a matter of statutory construction. [32].
Her Honour considered a number of Queensland decisions dealing with both similar provisions under the BIF Act and equivalent provisions under precursor legislation. [35]–[37]. Her Honour then went on to consider decisions in New South Wales and the Australian Capital Territory, where equivalent provisions to s 75(2)(b) had been found not to be jurisdictional facts. [39]–[40].
Her Honour observed that “it is generally accepted” that a requirement stipulated in the BIF Act is more amenable to being construed as a jurisdictional fact if it “is readily determined and little inconvenience is generally caused by identifying it as an essential precondition to the exercise of the relevant powers”. While her Honour conceded that, in a particular case, determining whether there had been compliance with s 75(2) could be factually complex, her Honour was persuaded that s 75(2)(b) was a “Category 1” matter and thus a jurisdictional fact. [41]–[42].
Her Honour explained that she preferred this interpretation because:
(1)the mandatory language of the provision and the importance of time under the BIF Act;
(2)in most cases the fact should be able to be readily determined;
(3)it was not an issue particularly relying on an adjudicator’s expertise;
(4)it was consistent with past Queensland authority dealing with similar issues; and
(5)to the extent such an interpretation differed from approaches in other cases, those other cases were distinguishable. [42]–[49].
Disposition
Her Honour held that the adjudication decision was void and directed that the Court would hear from the parties as to the precise form of relief and as to costs. [68].
B Wilson of Counsel