Significance

In circumstances where there was a concession that there is a prima facie case that the adjudication decision (under the Building and Construction Industry Payments Act 2004 (Qld) (Act)) was void for jurisdictional error, taking account of other discretionary factors, the court granted an interim interlocutory injunction restraining the issue of an adjudication certificate.

Facts

An adjudication determination under the Act required BRB Modular Pty Ltd (applicant) to pay AWX Constructions Pty Ltd (first respondent) $3,073,859.99 (plus costs and interest).The applicant sought:

  • a declaration that the decision was void for jurisdictional error; and
  • an interlocutory injunction (pending the hearing of the originating application) to restrain the first respondent from enforcing the adjudication decision.

For the purposes of the interlocutory application, the first respondent conceded that the applicant had a prima facie case that the decision was void for jurisdictional error.

The only question for consideration was whether the balance of convenience favoured the granting of an injunction.

Decision

Bond J granted the injunction.

His Honour found that, in circumstances where there was a concession that there is a prima facie case that the adjudication decision is void for jurisdictional error, it could not be intended to be the policy of the Act to attribute to the applicant the risk that the first respondent might not be able to refund moneys.

In coming to this conclusion, His Honour disagreed with the approach of Daubney J, in Wiggins Island Coal Export Terminal Pty Ltd v Sun Engineering (Qld) Pty Ltd [2014] QSC 170, who held that the owner carries the risk that monies paid pursuant to an adjudicator's decision may not be refunded by a claimant, even if the adjudicator's decision is ultimately declared void.

Bond J also found compelling the argument that the policy of the Act:

  • as reflected in section 31(4) of the Act, is that the price to be paid by a party to have a court hear and determine a challenge to an adjudication determination is to pay monies into court as security for the unpaid portion of the adjudication amount; and
  • would not be any different simply because the dispute comes before the court at a stage prior to the adjudication determination being converted into a judgement debt.