Restitutionary proceedings for amounts paid under a BCIPA claim can be commenced while the building contract remains on foot.


Gambaro Pty Ltd (plaintiff) entered into a building contract with Rohrig (Qld) Pty Ltd (defendant) in September 2012. In May 2014 the defendant served a payment claim under section 17 of Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) on the plaintiff. The amount claimed included works carried out up to, and including, May 2014. The plaintiff issued a payment schedule and paid the defendant the scheduled amount (which was less than the claimed amount).

The defendant made an adjudication application under BCIPA. The adjudicator found for the defendant and required the plaintiff to pay the claimed amount. The plaintiff paid the adjudicated amount and subsequently commenced proceedings for restitution of the adjudicated amount on the grounds that the defendant had no right to such amounts under the contract.

The defendant sought to strike out the whole of the plaintiff's claim on the grounds that, on a purposive construction of its sections 99 and 100 and Parts 2 and 3, BCIPA created a statutory entitlement to payment during the life of the contract. The defendant argued that this supplanted and suspended the contractual regime for payments until the completion of the contract. The plaintiff sought summary judgment if the defendant was unsuccessful in its strike out application.


Atkinson J found that BCIPA does not operate to prevent parties from enforcing their rights by civil litigation where rights under Part 2 and 3 of BCIPA had been exercised. Her Honour held that under section 100(2) of BCIPA the payment of an adjudicated amount does not affect the right of the party to take civil proceedings to enforce rights and obligations arising out of a construction contract.

Her Honour recognised that section 99 of BCIPA mandates that the statute prevails over conflicting contractual provisions, but also noted that there is no express limitation upon the rights recognised by section 100 of BCIPA nor any justification for implying that a party's right to litigate in a court may be suspended until the completion of the construction contract.

Her Honour denied summary judgment on the grounds that a number of issues remained the subject of factual and legal dispute between the parties and that these issues could only be determined at trial.