Building and Construction Industry Payments Act 2004 (Qld) (Act) – whether the applicant can pursue its statutory remedies under the Act concurrently with arbitration proceedings – whether the claim is an abuse of process
This case turned on its facts. It discusses the circumstances in which a payment claim or adjudication application may be an abuse of process.
Civil Mining & Construction Pty Ltd (applicant) and Isaac Regional Council (respondent) entered a contract for the construction of road works. The applicant served a final payment claim for $14.8 million.
The applicant sought a declaration that its final payment claim was valid. The respondent counter- applied for an injunction to prevent the progress of the final payment claim, arguing it was, and any subsequent adjudication would be, an abuse of process under the Act for three reasons:
- almost all components of the final payment claim had been the subject of previous adjudications, although each decision had been declared void by the court;
- the applicant knew the claim was substantially disputed by the respondent; and
- the applicant had invoked dispute resolution provisions of the contract, and the parties were engaged in mediation and arbitration of effectively the same matters contained in the final payment claim.
The respondent's cross-application for an injunction was dismissed, and as a result P McMurdo J was of the view that it was unnecessary to make the declaration sought by the applicant.
The previous adjudication decisions had been declared void, so it was as if there had been no adjudications. The Act did not prohibit the applicant from making a further payment claim which included amounts the subject of a previous claim.
The applicant's knowledge that its claim was disputed by the respondent could not be a bar to pursuit of the claim under the Act.
An adjudicator's decision is interim and does not finally resolve the rights of the parties under the contract, as an arbitration would. The remedies of arbitration and/or litigation, and adjudication may therefore be pursued concurrently.
The concurrent pursuit of these remedies could be an abuse of process but, on the facts of this case, was not.