Bridgeman Agencies Pty Ltd v S.E. QLD Plumbing & Drainage Pty Ltd [2025] QSC 167

An adjudication decision is alleged to be void for want of jurisdiction

• [1] The applicant, as contractor, entered a head contract in respect of a project. The applicant and the first respondent ("the subcontractor") then entered two subcontracts by which the subcontractor undertook to perform certain hydraulic services works on the project. The materially relevant subcontract is dated 26 March 2024 and is headed "Trade: 3002 Hydraulic Services Early Works" ("the subcontract"). The original subcontract sum for the subcontract was $101, 449.30 (excluding GST).
• [2] On 22 September 2024, the subcontractor issued to the applicant a payment claim ("the fourth payment claim") which claimed a progress payment of $180,310.94 (including GST). On 8 October 2024, the applicant issued a payment schedule in respect of the fourth payment claim. On 17 October 2024, the subcontractor lodged an adjudication application in respect of the fourth payment claim. On 14 November 2024, the second respondent issued an adjudication decision ("the decision") pursuant to which the adjudicator determined that the amount of $103,509.44 was payable by the contractor to the subcontractor pursuant to the fourth payment claim.
• [3] Section 68(1)(a) of the Building Industry Fairness (Security and Payment) Act 2017 (Qld) ("the Act") provides:

(1) A payment claim, for a progress payment, is a written document that -

(a) identifies the construction work or related goods and services to which the progress payment relates."

• [4] The ultimate issue raised in this proceeding is whether the fourth payment claim met the statutory definition of a "payment claim". The applicant contends that the fourth payment claim was not a "payment claim" within the meaning of the Act because, contrary to the requirements of s 68(1)(a), it did not identify the construction work or related goods and services to which the progress payment related. The payment claim was said to contain no description of work at all or, alternatively, to the extent that it relied upon percentages to describe the extent of completed work, that was said to be not a sufficient identification of the work to which the progress payment related.
• [5] The applicant seeks an order that the decision be set aside or declared void for want of jurisdiction. A further order is sought that the subcontractor be permanently restrained from enforcing or seeking to enforce the decision.

Section 68(1)(a) "identifies the construction work"

• [6] The object of the Act is "... to help people working in the building and construction industry in being paid for the work they do".[1] That purpose is to be achieved by "granting an entitlement to progress payments, whether or not the relevant contract makes provision for progress payments" and "establishing a procedure for ... making payment claims ... and ... responding to payment claims".[2] The builder's entitlement to a progress payment under the Act depends upon the builder having given a "payment claim" as claim as defined by s 68 of the Act, relevantly, a document which identified the construction work or related goods and services to which the progress payment related.
• [7] In MWB Everton Park Pty Ltd v Devcon Building Co Pty Ltd,[3] Dalton JA[4] relevantly said:

"In determining whether or not a document identifies the work, goods and services to which the claim relates, the Courts take a practical, and not overly technical, attitude. In T & M Buckley Pty Ltd v 57 Moss Road Pty Ltd Philippides J, writing in this Court, said that the issue for determination was, '... not whether the payment claim explained in every respect the means by which a particular claim item had been calculated, but whether the relevant construction work or related goods and services was sufficiently identified ... That is, whether the payment claim reasonably identified the construction work to which it related such that the basis of the claim was reasonably comprehensible to the applicant.' It has been accepted by the Courts that, in deciding whether or not work has been sufficiently identified, the background of each of the parties 'derived from their past dealings and exchanges of documentation' is to be taken into account.

... Unless something which meets the statutory definition of a payment claim is delivered to the principal, the principal has no statutory obligation to make a payment or respond with a payment schedule. ... Further, whether or not the document claimed to be a payment claim meets the statutory definition must be a matter of objective construction; the Court cannot be concerned with a subjective understanding of the principal."

• [8] As this passage makes plain, it is a settled principle that, in deciding whether work has been sufficiently identified, the background of each of the parties "derived from their past dealings and exchanges of documentation" is properly to be taken into account.[5] The application of that principle has been explained in a number of appellate level decisions.
• [9] In Coordinated Construction Company Pty Ltd v Climatech (Canberra) Pty Ltd,[6] the New South Wales Court of Appeal considered a statutory provision which provided that a payment claim "must identify the construction work (or related goods and services) to which the progress payment relates". Hodgson JA relevantly observed of that statutory provision:

"[25] ... s.13(2)(a) requires that a payment claim "identify" the construction work or related goods or services to which the payment relates. ... In my opinion, the relevant construction work or related goods and services must be identified sufficiently to enable the respondent to understand the basis of the claim ...".

• [10] In separate reasons, Basten JA relevantly said:[7]

"In John Holland v Cardno MBK, Einstein J expressed the view that, in order to satisfy the statutory scheme, a payment claim did not need to be 'comprehensible by the respondent in terms of its supporting materials' ... However, as Hodgson JA notes at [25] above, the claim must "identify" the work, goods or services to which the payment sought relates. The term 'identify' should be given a purposive construction: what must be done must be sufficient to draw the attention of the principal to the fact that an entitlement to a payment is asserted, arising under the contract to which both the contractor and the principal are parties. In that sense, the claim, to be valid, must be reasonably comprehensible to the other party. If the entitlement does not arise absent the supply of supporting documentation, then the claim must be accompanied by that documentation, unless it has already been provided."

• [11] In Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (in liq),[8] Hodgson JA,[9] after having referred to his earlier statement in Climatech Pty Ltd and having noted Basten JA's statements in the same case as set out above, described the degree of identification required in terms of whether "in all circumstances, the material in the payment claim was ... sufficient to convey to [the recipients] just what was the work for which payment was claimed".[10]
• [12] In separate reasons in Nepean Engineering Pty Ltd, Santow JA said:[11]

"... consistent with the object of the Act and the means for its achievement, I consider that there must be sufficient specificity in the payment claim for its recipient actually to be able to identify a 'payment claim' for the purpose of determining whether to pay, or to respond by way of a payment schedule indicating the extent of payment, if any. [The recipient] needs to be in a position to determine in a meaningful fashion whether to make payment, or else dispute it with reasons so as in that case to permit adjudication of the dispute, utilising the summary procedures under the Act. Those requirements underlying s 13 (2)(a) are satisfied in my view by a relatively undemanding test, though still one with some content; one which recognises the mandatory character of s 13(2)(a) signalled by the word 'must'. It is that 'the relevant construction work (or related goods and services) must be identified sufficiently to enable the respondent to understand the basis of the claim' This moreover is an objective not subjective test, taking into account the background knowledge each of the parties derive from their past dealings and exchange of documentation."

• [13] In T & M Buckley Pty Ltd,[12] Philippides J stated that the approach taken in Climatech Pty Ltd and Nepean Engineering Pty Ltd "indicates what is required in determining whether there has been sufficient identification for the purpose of s 17(2)(a)." Philippides J went on to describe that requirement as being "whether the relevant construction work or related goods and services was sufficiently identified as explained above. That is, whether the payment claim reasonably identified the construction work to which it related such that the basis of the claim was reasonably comprehensible to the applicant".[13] By reference to the facts of T & M Buckley Pty Ltd, Philippides J reasoned as follows:

"[39] Approaching the question in that manner, the respondent has demonstrated that the learned judge erred in finding that there was a real prospect of the applicant defending the payment claim on the basis that the payment claim did not sufficiently identify that part that related to suspension of time costs. For the same reasons, the learned judge erred in the approach he took in finding that the claim for retentions ($1,156) was invalid. Those items were identified in a manner that sufficiently allowed the applicant to understand the basis for the claims.

[40] The same applies in relation to the claim for sediment control costs. The payment claim sought an amount of $2,772 for 'Sediment Control as attached Claim No 30'. That description, in conjunction with the attachment, was sufficient to identify the relevant construction work to which that part of the claim related for the purposes of s 17(2)(a) BCIPA. It is to be noted that the attachment particularised the claim for sediment control costs in considerable detail, providing a description of the items of cost, unit, quantity, rate amount, extent of completion and claim value."

• [14] This objective approach to construction endeavours to ascertain how the parties to the contract "would have understood" the payment claim.[14] Hence, it has been observed that "documents which appear to be extremely summary, or to the uninformed but not unintelligent observer brief to the point of incomprehensibility, may be sufficiently meaningful to the parties to enable them to know, respectively, the bases on which a particular payment claim is advanced".[15]
• [15] The applicant relied upon Baxbex Pty Ltd v Bickle[16] as authority for the proposition that "documents relied upon to sustain a payment claim must be included in that payment claim".[17] In Baxbex, a document, described as "the schedule", purported to be a payment claim pursuant to s 17 of the Building and Construction Industry Payments Act 2004 (Qld) ("BCIPA"). The schedule had referred to, but not attached, various invoices. The information provided in the schedule for each invoice was limited to the invoice number, the invoice date and the balance owing. Daubney J found that the schedule was "on its face, not compliant" and noted that the schedule "did not identify the construction work" and "merely invoked invoices by invoice number and amount".[18] His Honour then said:[19]

"In this case, there has not been strict compliance with the provisions of the BCIPA. It cannot be said, as was argued by the applicant, that prior receipt of the invoices by the respondent amounted to sufficient identification for the purposes of s 17. The letter which was relied on as constituting the 'payment claim' did not comply with s 17 of the BCIPA as neither the construction work nor related goods or services were identified within the payment claim itself. As was postulated by McDougall J in Isis Projects v Clarence Street, quoting Palmer J in Multiplex Constructions Pty Ltd v Luikens & Anor in relation to a payment claim, 'precision and particularity must be required to a degree reasonably sufficient to apprise the parties of the real issues in the dispute.'

It would have been possible for the applicant to have sent copies of the invoices as part of, or annexed to, the schedule but this was not done. The present case is therefore quite different from the circumstances considered in Austruct Qld Pty Ltd v Independent Pub Group Pty Ltd where the invoices and supporting documentation were attached to the payment claim. While making no comment on whether or not on its proper construction it is necessary to separately identify construction work and related goods and services, Dutney J in that case found that the payment claim, including the attached invoices and supporting documentation, identified sufficiently for the purposes of s 17 of the BCIPA, the nature of each item claimed.

I conclude, therefore, that the letter dated 27 April 2009 was not a 'payment claim' under s 17 (2)."

• [16] Baxbex was considered by the Court of Appeal in T & M Buckley.[20] Notably, Philippides J (with whom Fraser and White JJA agreed) referred with apparent disapproval to the statement to the effect that "in relation to a payment claim, 'precision and particularity must be required to a degree reasonably sufficient to apprise the parties of the real issues in the dispute'." Philippides J cited appellate court authority which emphasised that a payment claim had a different function to a payment schedule. Whilst a payment schedule was required to identify the payment claim to which it relates, indicate the amount of the payment (if any) that was proposed to be made and why the payment in full was withheld, a payment claim was no more than a claim and its function was not to identify the scope of any dispute. Philippides J considered that the statement in relation to a payment claim that "precision and particularity must be required to a degree reasonably sufficient to apprise the parties of the real issues in the dispute" set the bar too high in respect of what was required of a payment claim.
• [17] With reference to the first instance decision in T & M Buckley, Philippides J found that the primary judge in that case had erred by making a finding, in reliance on Baxbex, to the effect that a claim lacked sufficient identification "because the relevant attachment provided with the payment claim referred to various supplier invoices that were not also attached to the payment claim". In respect of that finding, Philippides J relevantly said:[21]

"... in this regard the judge misconstrued the remarks of Daubney J in Baxbex Pty Ltd and thus erred in considering what was required in terms of s 17(2)(a). Daubney J's conclusion in Baxbex Pty Ltd, that the payment claim there under consideration did not comply with s 17(2)(a), was made in circumstances where the payment claim referred to an attached schedule which provided no information as to the construction work to which the claim related, other than merely invoking invoices by invoice number and date, but without attaching or providing those invoices. Baxbex Pty Ltd does not stand for the proposition implicit in the judge's reasons that a failure to provide documents referred to in a payment claim or attachment thereto per se results in there being a deficiency in identification for the purposes of s 17(2)(a). In the present case, the fact that the attachment referred to certain supplier invoices without also attaching them did not detract from the identification that was provided being sufficient."

• [18] Where a payment claim describes the percentage of work carried out, that description may be insufficient to identify the construction work in respect of the claim. In KDV Sport Pty Ltd v Muggeridge Constructions Pty Ltd,[22] Brown J found, on the facts of that case, that a payment claim which provided the percentage of work carried out lacked clarity and did not identify the construction work in respect of that claim. Her Honour relevantly observed:

"It may be possible to identify the work done where the claim is working off a zero base, but ... in the present case it is unclear what the percentages actually mean, given the fact that the figures for a number of items cannot be reconciled."

• [19] In MWB Everton Park, Dalton JA, after referring with approval to this part of the reasoning in KDV, observed that the contract in MWB Everton Park had been for the construction of 56 townhouses and, in those circumstances, "it was all but meaningless to say that 5% of concreting or 12% of plumbing had been completed".[23] By reference to those facts, her Honour considered that more description was needed if the document was to sufficiently identify the construction work or related goods and services for the purposes of s 68(1)(a) of the Act. In a footnote to her reasoning, Dalton JA relevantly noted:

"In different factual circumstances, a trade summary or trade breakdown might be sufficient. Hypothetically, if the contract was to build a single domestic dwelling and the only concreting was to the driveway, a description that 50% of the concreting had been achieved would allow the party receiving the claim to understand what work the builder said had been done."

The fourth payment claim, and the circumstances in which it was made

• [20] On 22 June 2024, the respondent emailed the first payment claim to the applicant. The first payment claim included a worksheet headed "Worksheet for Early Works Contract Claim 1". Prior to sending the first payment claim, the respondent's Mr Mundt had received a phone call from the applicant's project manager, Mr Mills. During that phone call Mr Mills requested that the respondent email "draft" copies of its proposed payment claims to be issued in respect of the 22 June 2024 reference dates under each of the two subcontracts. Mr Mills said words to the effect that if those "draft claims" were correct and acceptable then they would be approved and paid. On 21 June 2024, Mr Mundt emailed drafts of the then proposed payment claims as requested. Later that day, Mr Mundt received a phone call from Mr Mills in respect of the draft payment claims during which Mr Mills advised Mr Mundt that the drafts were "okay" and to lodge the payment claims. The draft of the proposed first payment claim under the subcontract as emailed on 21 June 2024 contained a worksheet which was materially identical to the worksheet which formed part of the first payment claim as made on 22 June 2024. On or about 28 June 2024, the applicant issued its payment schedule in response to the first payment claim. The full amount of the first payment claim was paid.
• [21] On 22 July 2024, the respondent sent by email the second payment claim to the applicant. The second payment claim included a worksheet headed "Worksheet for Early Works Contract Claim 2", which adopted the same format of the worksheet contained in the first payment claim. On or about 5 August 2024, the applicant issued its payment schedule in response to the second payment claim. On 22 August 2024, the respondent sent by email the third payment claim to the applicant. The third payment claim included a worksheet headed "Worksheet for Early Works Contract Claim 3", which adopted the same format of the worksheets contained in the first and second payment claims. On or about 5 September 2024, the applicant issued its payment schedule in response to the third payment claim.
• [22] On 22 September 2024, the respondent sent an email to the applicant with the subject line "Northshore Payment Claim 4 for September and Variation 3 changed pits to concrete". The 22 September 2024 email relevantly attached the fourth payment claim, which included a worksheet, which adopted the same format of the previous worksheets, headed "Worksheet for Early Works Contract Claim 4" ("the fourth payment claim's worksheet"). The email also included a separate worksheet headed "Contract Variation 3: change manholes to concrete" ("the variation 3 worksheet").

• [24] The fourth payment claim sought payment of two items claimed as owing under the subcontract, items 11 and 12, and seven items claimed by way of variations, items 22, 24, 25, 26, 27, 28 and 30.
• [25] Item 11 was identified as "1.03 Sewer Drainage Services". An item described as "1.03 Sewer Drainage Services" appeared in a schedule to the subcontract headed "Schedule B Pricing Schedules". Annexure B to the subcontract, which contained the Scope of Works, included a description of "Sewer Drainage Services" as "including" the following:
  • "underground service location;
  • cutting and removal of existing concrete and bitumen surfaces as required;
  • excavation and removal of spoil offsite;
  • provide safety boxes, shoring etc for safe working depth;
  • connection to existing council manhole with internal drop as per SEQ code and standards;
  • supply & install new 160 PE sewer main pipework (approximately 140 metres);
  • supply and install type F manhole with class D lid and frame as per SEQ code and standards;
  • supply & install type B4 property connection as per SEQ code and standards;
  • raise inspection opening to surface at property connection;
  • backfill trench with approved materials including compaction to existing surface level".[24]
• [26] From the making of the first payment claim, item 1.03 Sewer Drainage Services had been allocated a "breakdown" figure of $38,000.
• [27] Item 12 was identified as "1.04 Stormwater Drainage Services". An item described as "1.04 Stormwater Drainage Services" appeared in a schedule to the subcontract headed "Schedule B Pricing Schedules". Annexure B to the subcontract, which contained the Scope of Works, included a description of "Stormwater Drainage Services" as "including" the following:
  • "underground service location;
  • cutting and removal of existing concrete & bitumen surfaces as required;
  • execution and removal of spoil offsite;
  • locate and connect to existing stormwater infrastructure;
  • supply & install 150dia uPVC SW pipework including bends, junctions, capping etc;

Work outside 40hrs per week will be charges as per MA000036

Extra to meet SEQ Code including increase of invert level

Construction of insuite sewer manholes, incl step irons

• [30] As to item 25, on 12 August 2024, the respondent had emailed the applicant a worksheet headed "Contract Variation 4 Concrete Cutting over 200mm deep". The worksheet described the nature of the works the subject of the variation as "Concrete Cutting in excess of quoted 200mm thick". The worksheet contained a statement that the variation referred to "work undertaken for the sewer line up to the location of the black metal pipe encountered under the concrete slab, extra cuts against the poured slab necessary to bring downpipe within 50mm of poured slab side and extra cuts to remove concrete for changed bin wash". The worksheet detailed the manner of calculation of the amount of $2,936.11 as follows:

240 x 250 concrete floor (Hibbo charge $22m) (see reduced cost)

7.8m x 300mm NE End to accommodate changed bin wash

• [31] As to item 26, on 19 August 2024, the respondent emailed the applicant a worksheet headed "Variation 1 Supp 1 Sewer to Road connection extra/over". The spreadsheet described the nature of the works the subject of the variation as "Extra depth of concrete cutting - extra quantities of concrete removal, jackhammering and disposal. Downtime of machines and operators due to extra and unknown factors. Abnormal findings by [the respondent] when area exposed - see email below. Under engineer's instructions - Remove black unsuitable material down to sand layer, build back up to below invert level CBR; (compacted). Geofab, then bedding sand to invert level." The worksheet noted that only amounts over those amounts allowed in variation 1 were included in the calculation. The worksheet detailed the manner of calculation of the amount of $50,714.55 over some 4 pages by reference to the operation of identified plant, equipment and labour charges. The worksheet noted that 24.5 metres of trenching had been completed and 19.5 metres of pipe had been laid.
• [32] As to item 27, on 22 August 2024, the respondent emailed the applicant a worksheet headed "Variation 1 Supp 2 Unsafe site closure to road crossing". The worksheet described the variation as being supplementary to Quote 1659. The worksheet described the nature of the works the subject of the variation as follows "... quote 1659 was based upon trenching in solid soil, free of rock or concrete, 1.5m deep by .5m wide. In all calculations only X/O (extra over) is claimed after consideration of variation 1. Abnormal findings by [the respondent] when area exposed - see email below. Under engineer's instructions - Remove black unsuitable material down to sand layer, build back up to below invert level with CBR; (compacted). Geofab, then bedding sand to invert level". The worksheet detailed the manner of calculation of the amount of $47,777.22 over some 4 pages by reference to the operation of identified plant, equipment and labour charges. The worksheet noted that the variation was concerned with work "[f]rom the 19.5 m mark to the road crossing 21/8/214."
• [33] As to item 28, on 7 September 2024, the respondent emailed the applicant a worksheet headed "Variation 1 Supp 3 Sewer to Road connection 31st Aug 24". The worksheet described the variation as being supplementary to Quote 1659. The worksheet described the nature of the works the subject of the variation as follows "Remove unsuitable soil spoil from Compound. Lay sewer line, supply and compact CBR continuing to end of stage 1. Downtime of machines and operators due to extra and unknown factors. Under engineer's instructions - remove black unsuitable material down to sand layer, build back up to below invert level. Geofab, then bedding sand to invert level". The worksheet detailed the manner of calculation of the amount of $101,303.17 over some 4 pages by reference to the operation of identified plant, equipment and labour charges. The worksheet noted that the variation was concerned with work which had completed the trenching required for Stage 1.

• [35] As to item 24, as has already been noted, under cover of the fourth payment claim, the variation 3 worksheet was provided. The variation 3 worksheet that variation as "Change manholes to concrete". The variation 3 worksheet described the nature of the works the subject of the variation as "Changed Pits from quoted materials to concrete". The worksheet identified the difference in material and labour costs between poly pits changed over to concrete pits. The worksheet detailed the manner of calculation of the amount of $12,361.72 as follows:

Tools and Consumerables (Quick cut foam fill, morter)

Excavation over/above 1500x1500 opposed to 450 sq pit

Altering concrete pits and risers to suit PVC SW pipes using

Shape concrete pits and risers to suit PVC SW pipes using

Holes concrete pit and riser to suit PVC SW pipes using

CREDITS This shows the material and labour difference between Poly pits changed over to concrete pits

Rein 450mm Stormwater Pit 510mm Deep with Grate Light Duty

Rein 600mm Stormwater Pit Square 660mm Deep with Grate Medium Duty

Credit for base of pits (Nil - poly pits come with basis)

• [36] The applicant submitted that the fourth payment claim was not a valid payment claim because it did not identify the construction work or related goods and services to which the progress payment related. There were two essential limbs to that argument. The first was that the fourth payment claim did not within itself identify construction work, the words used within the payment claim being apt to describe trade packages but not work performed. The second limb was to the effect that even if the Court were permitted to look for the identification in the previously exchanged documentation, the use of percentages to describe the work performed meant that the work was not identified.
• [37] As to the first limb, the argument as developed orally on behalf of the applicant was to the effect that "... a payment claim can't be a payment claim unless it identifies the construction work or related goods and services to which it relates ... [a]nd ... that cannot be achieved by reference to documents that do not form part of the payment claim itself".[25] That submission was explained in terms that "the failure of a payment claim to identify construction work [could not] be remedied by reference to documents that did not form part of the payment claim itself".[26] The applicant variously submitted that regard could not be had to documents which did not form part of a payment claim for the purpose of deciding whether the payment claim identified the construction work,[27] that "what's relevant is what's delivered"[28] and documents relied upon to sustain a payment claim must be included in the payment claim.[29] The applicant reached the point of submitting that the court could not look at any document outside of a payment claim for the purpose of identifying the work or related goods or services.[30] The ultimate contention made by the applicant's submission was that the fourth payment claim, on its face was "insufficient to be construed as ... any description of work."[31] It was submitted that the fourth payment claim, properly construed, contained "no description of the work at all".[32]
• [38] I reject these submissions. It is a settled principle that, in deciding whether work has been sufficiently identified, the background of each of the parties "derived from their past dealings and exchanges of documentation" is properly to be taken into account. Once it is appreciated that the objective task of construction takes into account the background knowledge of each of the parties derived from their past dealings and exchanges of documentation, the question whether the relevant construction work is identified sufficiently cannot be answered by confining the inquiry to the actual document or documents comprising the payment claim. Hence, as has been observed in the case law a payment claim "which appear[s] to be extremely summary, or to the uninformed but not unintelligent observer brief to the point of incomprehensibility, may be sufficiently meaningful to the parties to enable them to know, respectively, the bases on which a particular payment claim is advanced". In this case, items 11 and 12 respectively contained shorthand identifications of the work described in Annexure B to the subcontract as Sewer drainage services and Stormwater drainage services. The seven items claimed by way of variations, items 22, 24, 25, 26, 27, 28 and 30, having regard to the previous correspondence exchanged between the parties and the correspondence included with the fourth payment claim in respect of variation three, contained sufficiently meaningful words to be understood as a reference to identified work.

(a) As to item 11, the amount of $1,900.00 was claimed representing a percentage value of 5% of the work comprising Sewer Drainage Services. Having regard to the nature and extent of the work described in Annexure B to the subcontract as Sewer Drainage Services, I find that it is unclear from the fourth payment claim what work comprised that 5% of the Sewer Drainage Services. The use of a percentage figure in this instance was not sufficient to identify the particular work the subject of the claim.

(b) As to item 12, the amount of $4,000 was claimed representing a percentage value of 25% of the work comprising Stormwater Drainage Services. Having regard to the nature and extent of the work described in Annexure B to the subcontract as Stormwater Drainage Services, I find that it is unclear from the fourth payment claim what work comprised that 25% of the Stormwater drainage services. The use of a percentage figure in this case was not sufficient to identify the particular work the subject of the claim.

(c) As to item 22, the amount of $3,264.25 was claimed representing a percentage value of 5% of the work comprising "variation 1 Quote 1659". Having regard to the nature and extent of the work described in the previous correspondence as comprising "variation 1 Quote 1659", I find that it is unclear from the fourth payment claim what work comprised that 5% of the work comprising "variation 1 Quote 1659". The use of a percentage figure in this case was not sufficient to identify the particular work the subject of the claim.

(d) As to item 25, the amount of $584.11 was claimed representing a percentage value of approximately 20% of the work comprising "Contract Variation 4 Concrete Cutting over 200mm deep". Having regard to the nature and extent of the work described in the previous correspondence as comprising "Contract Variation 4 Concrete Cutting over 200mm deep", I find that it is unclear from the fourth payment claim what work comprised the approximately 20% of the work comprising "Contract Variation 4 Concrete Cutting over 200mm deep". The use of a percentage figure in this case was not sufficient to identify the particular work the subject of the claim.

(e) As to item 26, the amount of $7,059.71 was claimed representing a percentage value of approximately 14% of the work comprising "Variation 1 Supp 1 Sewer to Road connection extra/over". Having regard to the nature and extent of the work described in the previous correspondence as comprising "Variation 1 Supp 1 Sewer to Road connection extra/over", I find that it is unclear from the fourth payment claim what work comprised the approximately 14% of the work comprising "Variation 1 Supp 1 Sewer to Road connection extra/over". The use of a percentage figure in this case was not sufficient to identify the particular work the subject of the claim.

• [41] The applicant sought declaratory relief that the decision be declared void for want of jurisdiction.[35] As has been observed by Copley J in Baguley Build Pty Ltd v Olcon Concrete & Construction Pty Ltd,[36] the statutory provision which confers functions on an adjudicator, s 88, is the correct point from which to commence when considering the issue of jurisdictional error. One of the matters identified in s 88(2) is "the payment claim to which the application relates". In Niclin Constructions Pty Ltd v Robotic Steel Fab Pty Ltd[37] Applegarth J relevantly said:

"The valid exercise of an adjudicator's jurisdiction is conditioned on the adjudicator having considered the matters set out in s 88(2) of the Act. The valid exercise of an adjudicator's decision is not conditioned on the adjudicator reaching what is objectively the correct conclusion on the questions of fact or law that are required by the consideration of the matters set out in s 88(2). Expressed differently, 'there are many errors of fact and law which might be made by an adjudicator which would not be regarded as going to jurisdiction'."

• [42] In Brodyn Pty Ltd v Davenport [38] Hodgson JA (with whom Mason P and Giles JA agreed) drew a distinction between ss 13(1) and (2) of the Building and Construction Industry Security of Payment Act (1999) (NSW) ("the NSW Act"). Those sections were materially in these terms:

(1) A person ... who is or who claims to be entitled to a progress payment (the claimant) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment.

(a) must identify the construction work (or related goods and services) to which the progress payment relates, and

(b) must indicate the amount of the progress payment that the claimant claims to be due (the claimed amount), and

(c) must state that it is made under this act."

• [43] Hodgson J described s 13(1) as containing a "basic and essential requirement" which was part of the "conditions laid down for the existence of an adjudicator's determination". His Honour described s 13(2) as containing "more detailed requirements" as to "the content of payment claims". After having drawn that distinction, his Honour then said in relation to the requirements of s 13(2):

"A question arises whether any non-compliance with any of these requirements has the effect that a purported determination is void, that is, is not in truth an adjudicator's determination. That question has been approached in the first instance decision by asking whether an error by the adjudicator in determining whether any of these requirements is satisfied is a jurisdictional or non-jurisdictional error. I think that approach has tended to cast the net too widely; and I think it is preferable to ask whether a requirement being considered was intended by the legislature to be an essential pre-condition for the existence of an adjudicator's determination.

In my opinion, the reasons given above for excluding judicial review on the basis of non-jurisdictional error of law justify the conclusion that the legislature did not intend that exact compliance with all the more detailed requirements was essential to the existence of a determination: cf Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355 at 390-391. What was intended to be essential was compliance with the basic requirements (and those set out above may not be exhaustive), a bona fide attempt by the adjudicator to exercise the relevant power relating to the subject matter of the legislation and reasonably capable of reference to this power (cf R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598), and no substantial denial of the measure of natural justice that the Act requires to be given. If the basic requirements are not complied with, or if a purported determination is not such a bona fide attempt, or if there is a substantial denial of this measure of natural justice, then in my opinion a purported determination will be void and not merely voidable, because there will then not, in my opinion, be satisfaction of requirements that the legislature has indicated as essential to the existence of a determination. If a question is raised before an adjudicator as to whether more detailed requirements have been exactly complied with, a failure to address that question could indicate that there was not a bona fide attempt to exercise the power; but if the question is addressed, then the determination will not be made void simply because of an erroneous decision that they were complied with or as to the consequences of non-compliance."

• [44] Later, Hodgson JA continued:[39]

"If there is a document served by a claimant on a respondent that purports to be a payment claim under the Act, questions as to whether the document complies in all respects with the requirements of the Act are generally, in my opinion, for the adjudicator to decide. Many of these questions can involve doubtful questions of fact and law; and as I have indicated earlier, in my opinion the legislature has manifested an intention that the existence of a determination should not turn on answers to questions of this kind. However, I do not need to express a final view on this."

• [45] The reasoning of Hodgson JA in Brodyn is consistent with the approach of Bond J in E Home Construction Pty Ltd v GCB Constructions Pty Ltd.[40] In that case, his Honour relevantly said "The characterisation exercise necessary to be done in order to deal with the jurisdictional argument is a characterisation exercise that has to be done in relation to the entirety of the payment claim". His Honour went on to accept as correct the proposition that "... because the majority of the payment claim was for things that plainly could be claimed for in a valid payment claim, the payment claim still could be appropriately characterised as such". In the present case, the two biggest claim items, items 27 and 28, together with items 24 and 30 sufficiently identified the construction work and services the subject of the fourth payment claim. Those items accounted for approximately $161, 000, an overwhelming majority of the total amount of the payment claim. Having regard to the characterisation exercise necessary to be undertaken by reference to the entirety of the fourth payment claim, the fourth payment claim is appropriately characterised as a valid payment claim and no jurisdictional error has been established.

• [46] The orders I make are as follows:
  1. The originating application filed 18 November 2024 is dismissed.
  2. I will hear the parties as to costs.

[3] [2024] QCA 94 at [24] and [26].

[4] With whom Brown and Kelly JJ agreed.

[5] T & M Buckley Pty Ltd v 57 Moss Rd Pty Ltd [2010] QCA 381 at [14]; Neumann Contractors Pty Ltd v Peet Beachton Syndicate Ltd [2011] 1 Qd R 17 at [25]; Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (in liq) [2005] NSWCA 409; (2005) 64 NSWLR 462 at [48].

[8] [2005] NSWCA 409; (2005) 64 NSWLR 462.

[12] [2010] QCA 381 at [37].

[14] Leighton v Arogen [2012] NSWSC 1323 at [69].

[15] Ibid; See also ISIS Projects Pty Ltd v Clarence Street Pty Ltd [2004] NSWSC 714 at [36] and [37].

[16] [2009] QSC 194.

[18] [2009] QSC 194 at [15].

[20] [2010] QCA 381 at [16].

[22] [2019] QSC 178 at [37].

[23] [2024] QCA 94 at [25].

[33] T & M Buckley Pty Ltd v 57 Moss Rd Pty Ltd [2010] QCA 381 at [14]; Neumann Contractors Pty Ltd v Peet Beachton Syndicate Ltd [2011] 1 Qd R 17 at [25]; Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (in liq) [2005] NSWCA 409; (2005) 64 NSWLR 462 at [48].

[34] Leighton v Arogen [2012] NSWSC 1323 at [69]; See also ISIS Projects Pty Ltd v Clarence Street Pty Ltd [2004] NSWSC 714 at [36] and [37].

[35] Originating Application, Final orders sought paragraph 1.

[36] [2025] QSC 126 at [19].

[37] (2023) 16 QR 336 at [18].

[38] (2004) 61 NSWLR 421 at 441-442 [53] to [55].

[40] [2020] QSC 291 at pp 6-7.