Building and Construction Industry Payments Act 2004 (Qld) (Act) – sections 17 and 21 – whether the payment claim was valid – whether the adjudicator had jurisdiction – Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) – section 42
In an ex tempore decision (i.e. delivered soon or straight after the hearing), Bond J applied well known security of payment principles to the facts, dismissing an application to declare an adjudicator's decision void.
Total Cool Pty Ltd (first respondent) was the beneficiary of an adjudication decision under the Act requiring Jag Projects Qld Pty Ltd (applicant) to pay $88,000. The applicant did not pay by the due date and the first respondent issued a statutory demand under the Corporations Act 2001 (Cth), which also went unpaid.
The applicant sought a declaration that the adjudication decision was void on the following grounds:
- two payments claims had been issued for the same work contrary to section 17(4) of the Act, (although, of the two invoices that had been issued, only one had been endorsed under the Act);
- the adjudicator failed to give sufficient reasons; and
- the adjudicator failed to properly consider the applicant's submissions.
The applicant further contended that the first respondent was disentitled from using the security of payment regime as it was not licensed under the QBCC Act at the time of making its payment claim, although it was licensed when it entered into the contract and performed the work.
Bond J held that the payment claim was valid; there was only one payment claim for the work as the first respondent proceeded under the invoice which was endorsed under the Act.
Although the first respondent conceded that the adjudicator's reasons were 'sparse', His Honour held that as a whole, the adjudicator had demonstrated awareness of the disputes between the parties and had 'considered the material and expressed a conclusion in favour of the [first respondent]'. This was not a situation where there was 'a mere indication by an adjudicator of having read the material and [expressed] a conclusion as to satisfaction'.
His Honour also rejected the applicant's contention that the first respondent was disentitled from using the regime established by the Act, as the first respondent held the relevant licence at the time it undertook to, and carried out the work the subject of the payment claim.