Serving later identical payment claims under the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) is now permitted following the recent decision of the Queensland Supreme Court in Spankie & Ors v James Trowse Constructions Pty Ltd & Ors [2010] QSC 336 (Spankie).

On 31 August 2009, the claimant in Spankie served a payment claim on the respondent for about $446,000.00. An adjudicator appointed made a decision in the claimant’s favour. That decision was later declared void by the Courts, for unrelated reasons, and the claimant was not entitled to the adjudicated amount.

On 31 May 2010, the claimant served another payment claim, which was identical to the payment claim served on 31 August 2009.

Section 17(5) of the BCIPA provides that a claimant cannot serve more than one payment claim for each reference date, being (usually) a date from which the claimant is entitled to a progress payment under the construction contract. However section 17(6) provides that section 17(5) does not prevent a claimant from “including” in a payment claim an amount that has been the subject of a previous claim.

The Queensland Supreme Court, most notably in Doolan v Rubikcon (Qld) Pty Ltd [2008] 2 Qd R 117, considered that the use of the word “including”, meant that the later payment claim must not be the same as an earlier payment claim, but must include some additional amount or construction work claimed. The Court in Spankie disagreed and determined that an identical payment claim can be served from a later reference date. However this decision does not detract from the now settled principle that a claimant cannot claim under the BCIPA an amount which has been the subject of an earlier valid adjudicator’s decision.

The state of play (at least in Queensland) following Spankie is:

  1. A payment claim will not be invalid because it is identical to an earlier payment claim.
  2. A claimant is not entitled to claim under the BCIPA an amount which has been the subject of an earlier valid adjudicator’s decision.