Bright Days Herston Pty Ltd v ATG Project & Property Solutions Pty Ltd [2025] QSC 147

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - REMUNERATION - STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS - ADJUDICATION OF PAYMENT CLAIMS - where the applicant and the first respondent entered into a construction contract and the first respondent made an adjudication application under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) after a dispute arose in relation to a payment claim - where the applicant objected to the first adjudicator determining the application due to a reasonable apprehension of bias - where by an email in response to the applicant's objection, the first adjudicator advised that he did not intend to issue a decision - where the first respondent then requested the Registrar refer the adjudication application to a subsequent adjudicator (the second respondent) - where the applicant advances two grounds by which the decision of the second respondent was affected by jurisdictional error - where the applicant contends the second respondent did not have jurisdiction to determine the adjudication application because the first adjudicator's decision not to issue a decision, was in fact, a decision made under the Act - where the applicant contends the second respondent failed to take into account mandatory considerations being, the applicant's submissions regarding the second respondent's jurisdiction to determine the application and the applicant's submissions to the first respondent regarding a subsequent payment - whether the second respondent had jurisdiction to determine the application - whether the second respondent failed to consider mandatory considerations thereby constituting a jurisdictional error

Building Industry Fairness (Security of Payment) Act 2017 (Qld), ss 80, 81, 84, 85, 88, 90, 94, 95

Building Industry Fairness (Security of Payment) Regulation 2018 (Qld), s 13

Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd [2020] QSC 133; (2020) 4 QR 410

Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215; (2023) 112 NSWLR 225

Chevron Park Pty Ltd v Groupline Constructions Pty Ltd & Ors [2024] QSC 202

Duro Felguera Australia Pty Ltd v Samsung C&T Corporation [2018] WASCA 28; (2018) 52 WAR 323

S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2020] QSC 307

Lendlease Building Pty Ltd v BCF Airport Systems Pty Ltd & Ors [2024] QSC 164

Martinus Rail Pty Ltd v Qube RE: Services (No 2) Pty Ltd (No 2) [2024] NSWSC 1223

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1

Shellbridge Pty Ltd v Rider Hunt Sydney Pty Ltd [2005] NSWSC

Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd & Ors [2012] QSC 373

D S Piggott KC and J Mitchenson for the first respondent

• [1] On 7 December 2021, Bright Days (the applicant) and ATG (the first respondent) entered into a construction contract to design and construct a childcare centre at Herston. The contracted price was just over $11 million.
• [2] A dispute arose in late 2023 in relation to a payment claim and, by this application, Bright Days seeks a declaration that an adjudication decision of the second respondent dated 22 January 2024, is void on account of jurisdictional error and applies for it to be set aside.
• [3] For the reasons which follow, Bright Days' application is dismissed.

• [4] On 25 September 2023, ATG served Payment Claim 22 on Bright Days for the sum of $1,323,003.95 (including GST).
• [5] On 10 October 2023, the Superintendent issued the Progress Payment Certificate 22 certifying the amount of $782,738.00 (including GST) in response to the Payment Claim. The GST component was $711,580.00.
• [6] On 17 October 2023, Bright Days served Payment Schedule 11 on ATG in response, scheduling an amount of $71,158.00. Some of the detail in the Payment Schedule is set out below at [61(b)].
• [7] On 19 October 2023, ATG made an Adjudication Application under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (the Act).
• [8] On 26 October 2023, the adjudicator, Mr Trattler, in accordance with s 81 of the Act, confirmed acceptance of the 19 October adjudication application No. QBCC 2381736.
• [9] On 27 October 2023, solicitors on behalf of Bright Days wrote to Mr Trattler, noting his appointment in respect of the 19 October Adjudication Application (and another application irrelevant for the purposes of this proceeding) and observed:

(a) Section 80 of the Building Industry Fairness (Security of Payment) Act 2017 (Qld);

(b) Section 13(1) of the Building Industry Fairness (Security of Payment) Regulation 2018 (Qld); and

(c) The Code of Conduct for Adjudicators (Version 1.0, November 2018) issued by the Queensland Building Construction Commission."

• [10] Although the letter did not expressly say it, the reference to s 80, s 13 and the Code of Conduct, went to issues related to the adjudicator's eligibility or otherwise, to adjudicate. Section 80 of the Act provides:

"80 When adjudicator ineligible to adjudicate

An adjudicator is not eligible to adjudicate an adjudication application if the adjudicator─

(a) is a party to the construction contract to which the application relates; or

(b) has a conflict of interest as prescribed by regulation."

• [11] Given that no party contended Mr Trattler was a party to the construction contract, the letter of 27 October could only be construed as a reference to a potential conflict of interest under subsection (b).
• [12] On 30 October 2023, Mr Trattler replied with correspondence to the parties as follows:

"The Respondent has requested that I consider whether I have a conflict of interest under section 80 of the Act, with reference to the regulation and code of practice.

(1) For section 80(b) of the Act, an adjudicator has a conflict of interest if─

(a) the adjudicator or a family member of the adjudicator─

(i) is, or is contracted to be, employed or otherwise engaged by the claimant or respondent for the adjudication application; or

(ii) is an owner of a building, structure or land in relation to which construction work or the supply of related goods and services to which the adjudication application relates is being carried out; or

(iii) is carrying out construction work or the supply of related goods and services in relation to a building, structure or land to which the adjudication application relates; or

(iv) has a direct or indirect pecuniary or other interest in a matter to be considered during the adjudication that could conflict with the proper performance of the adjudicator in adjudicating the adjudication application; or

(b) the claimant or respondent for the adjudication application is a family member of the adjudicator.

I confirm that none of those subsections apply. Neither I nor any family member has an interest in the parties or the work. I am not aware of any conflict involving the Claimant or the Respondent or any matter which would prevent me from deciding the adjudication fairly between the parties. If there is something in particular, the Respondent will need to be express in the communication regarding the issue.

By way of disclosure, my employer engages the same solicitors as the Respondent on an unrelated matter. I am providing instructions to a different partner of that firm and will be communicating with her about that unrelated matter during the time that these adjudications are occurring. While not a conflict of interest under the legislation, there is a possibility of a perceived conflict of interest.

I ask that both parties confirm in writing that they agree to me acting in those circumstances. Please respond by 5pm on 31 October 2023."

• [13] On 31 October 2023, solicitors on behalf of Bright Days objected to Mr Trattler acting as the adjudicator, stating in an email:

"You have asked that our client confirm in writing whether it agrees to you continuing to act as the adjudicator in both matters.

The issue is the perception of bias (see item 2 of the Code of Conduct for Adjudicators).

We raised the matter because neither party is assisted if there is even the perception of bias affecting the decisions that you have been tasked with making.

We are instructed that our client is concerned that the circumstances give rise to at least a perception of bias. This perception issue is acknowledged in your notice below.

To be clear, our client does not consider that you are biased, only that a fair-minded lay observer with knowledge of the relevant facts might entertain that you might not bring an unprejudiced mind to the matter. In the circumstances, our client considers it is best if an adjudicator with no connection to the parties determines the claimant's applications.

Accordingly, we are instructed that our client does not agree to you acting as the adjudicator in either adjudication."

• [14] ATG's solicitor responded later that same day recording that it did not consider there was any conflict of interest and said:

"There is no mechanism under the BIF Act that would allow the Respondent to 'not agree' to a particular adjudicator. It is not clear on what basis the Respondent has advised that it 'does not agree to you acting as the adjudicator in either adjudication'."

• [15] On 2 November 2023, Mr Trattler wrote to the parties as follows:

"Thank you for the response to my email, which I have considered.

I understand the comments from the Claimant regarding the process and there not being any ability for a Respondent to 'not agree' to an adjudicator.

Having considered the matter in detail, please be advised that I do not intend to issue a decision, as given the Respondent's stated objections, I am concerned that an independent observer may consider that there is an appearance of bias given the need to communicate with the Respondent's solicitors outside of the adjudication process.

The Claimant's attention is drawn to section 94 of the Act."

"94 Claimant may make new application in certain circumstances

(1) Subsection (2) applies if an adjudicator, who accepts a referral to decide an adjudication application (the original application), does not decide the application within the period required under section 85.

(2) The claimant may do either of the following within 5 business days after the period mentioned in subsection (1)─

(a) request the registrar refer the original application to another adjudicator; or

(b) make a new adjudication application (the new application) under section 79 ..."

• [17] Section 94 therefore provides that in certain, limited, circumstances a claimant may make a new application for an adjudication, or ask the Registrar to refer it to another adjudicator. Those certain, limited, circumstances occur if an adjudicator has, firstly, accepted a referral to decide an adjudication application and, secondly, does not decide the application within the period required under s 85.
• [18] Before making a new adjudication application, ATG wrote to Mr Trattler on 6 December 2023, observing that the 19 October 2023 Adjudication Application was due to be decided on 4 December 2023, and made reference to the notice of 2 November 2023, referring the claimant's attention to s 94 of the Act and asked:

"So that the Claimant can take the appropriate steps pursuant to that section, we would be grateful if the Adjudicator would confirm the following matters:

1. The Adjudicator has not made a decision on either Adjudication Applications 2381736 or 2381846 within the time required by section 85 of the Act.
2. The Adjudicator has not received from the Respondent an Adjudication Response in either of adjudication applications 2381736 or 2381846."

• [19] The adjudicator responded the same day as follows:

"I confirm that an adjudication decision was not made in either application within the time required by the Act and did not receive an adjudication response in either matter."

• [20] On 7 December 2023, ATG requested the Registrar refer the adjudication application to another adjudicator, and on 13 December the second respondent confirmed acceptance of that adjudication application.
• [21] On 19 December 2023, ATG served the adjudication application on the adjudicator. On 20 December 2023 Bright Days served its adjudication response.
• [22] On 22 January 2024 the adjudicator, Mr Morrow, issued the adjudication decision. After correction, the adjudicated amount was $1,004,306.52.

• [23] Bright Days' primary position is that there was no valid referral to the second adjudicator, Mr Morrow, because, irrespective of the characterisation given by Mr Trattler to his decision of 2 November 2023 (set out at [15] above), his decision was, in fact, a decision made under the Act. That is because, Bright Days contends, that a decision not to decide an application is nevertheless a decision made under the Act. In support of this submission, Bright Days points to ss 95(7) and 85(3) of the Act.
• [24] Section 95 is concerned with the adjudicator's fees. It provides the circumstances in which the adjudicator is entitled to be paid for adjudicating an adjudication application:

(6) An adjudicator is not entitled to be paid any fees or expenses for adjudicating an adjudication application if the adjudicator fails to make a decision on the application.

(7) An adjudicator does not fail to make a decision only because─

(b) the adjudicator decided he or she did not have jurisdiction to adjudicate the application; or

(c) the adjudicator decided the application was frivolous or vexatious; or

(d) the adjudicator refuses to communicate the adjudicator's decision on an adjudication application until the adjudicator's fees and expenses are paid."

• [25] Section 95(7) does not support Bright Days' argument. Section 95 is concerned with the payment of the adjudicator's fees, the obligation to pay them and by whom, whether the obligation is joint and several (it is both),[1] and other matters pertaining to payment. It is not a provision directed towards determining what does, or does not, constitute the making of a decision.
• [26] The word "adjudicating" is defined in s 95(9) of the Act to include "accepting, considering and deciding the (adjudication) application". Adjudicating therefore involves (at least) three elements - accepting, considering and deciding. The meaning of s 95(7), that an adjudicator does not fail to make a decision "only because" the adjudicator has decided he or she does not have jurisdiction to adjudicate the application, refers to the circumstance where an adjudicator accepts, considers and decides the application, but in so deciding, concludes that he or she has no jurisdiction. In such a case, an adjudicator does not lose the entitlement to be paid "only because" he or she decided there was no jurisdiction. It is a provision directed towards ensuring fairness of payment to adjudicators in those limited circumstances.[2]
• [27] The construction that the term "adjudicating" in s 95(9) in fact involves three elements - accepting, considering and deciding - is also consistent with s 94(1) that if an adjudicator "accepts a referral", but does not "decide" it, demonstrates that it is possible for an adjudicator to accept a referral, but not complete it by considering and deciding the application on its merits.
• [28] As to s 85(3), Bright Days contends that section supports the conclusion that the adjudicator's statement that he had not made a decision on the application was in fact a decision. Section 85 relates to the time for deciding an adjudication application and s 85(3) relevantly provides:

(3) An adjudicator must not decide an adjudication application before the end of the period that the respondent may give an adjudication response to the adjudicator under section 83, unless─

(a) the adjudicator decides he or she does not have jurisdiction to adjudicate the application; or

(b) the adjudicator decides the application is frivolous or vexatious."

• [29] Bright Days submits that whether the adjudicator has the jurisdiction to adjudicate the application is in fact, "the very first thing an adjudicator must decide" within s 84(2). Section 84 provides:

(1) Subject to the time requirements under section 85, an adjudicator must decide the following as quickly as possible─

(b) applications for extensions of time under section 83.

(2) For a proceeding conducted to decide an adjudication application, an adjudicator─

(i) whether he or she has jurisdiction to adjudicate the application; and

(ii) whether the application is frivolous or vexatious; and

(b) may ask for further written submissions from either party and must give the other party an opportunity to comment on the submissions; and

(c) may set deadlines for further submissions and comments by the parties; and

(e) may carry out an inspection of any matter to which the claim relates.

• [30] Bright Days contends that where the adjudicator decided he had no jurisdiction to determine the adjudication application, due to a reasonable apprehension of bias, a decision permitted by ss 84(2)(a)(i) and 85(3) of the Act, this was a determination of the adjudication application referred.
• [31] Finally, Bright Days contends that the requirements for a decision under the Act are undemanding in that the decision must simply be in writing, include reasons for the decision (s 88(5)), and be given to the Registrar (s 88(6)). Bright Days submits that the adjudicator complied with these requirements by sending an email to the parties and the Registrar on 2 November 2023.
• [32] As a matter of statutory construction, Bright Days' submissions must be rejected because:

(a) if the preliminary decision that the adjudicator makes that he or she does not have jurisdiction to adjudicate the application was in fact the decision itself, then the adjudicator would not have to consider and decide any of the substance of the application;

(b) having failed to do so, on Bright Days' construction he or she would nevertheless be fully entitled to be paid, having made a decision; and

(c) s 94(1) would never have any work to do, because on any occasion an adjudicator decided they did not have jurisdiction, but had not considered the substance of the application, no new application could ever be made.

• [33] As a question of fact, Mr Trattler did exactly what Bright Days had instructed him to do in their letter of 31 October 2023, when they expressed the position that it was best if another adjudicator determined the application.
• [34] But in any event, I conclude that the 2 November email was not a decision by Mr Trattler that he did not have jurisdiction to adjudicate the adjudication application. Bright Days agrees that the construction of Mr Trattler's email is a matter for the court to assess having regard to the words used. In my view, Mr Trattler did not make any decision about jurisdiction. Rather he concluded only that having considered the issue which had been raised against him, being a "perception of bias", he advised that he did not intend to issue a decision. His express reference drawing the parties' attention to s 94 of the Act, reinforced his own (correct) view that he had not decided the application and a new application would be available under s 94. That is the proper construction of the 2 November email. Mr Trattler advised the parties that he did not intend to issue a decision at all, given Bright Days' objection to his appointment. Clearly, the 2 November email was not a "decision" as Bright Days contends.
• [35] In the circumstances, Ground 1 of the application fails. Bright Days' submission that Mr Trattler's decision was not one which enlivens s 94 cannot be sustained. Accordingly, the subsequent adjudicator did have jurisdiction to determine the application and his decision cannot be impugned on the basis that he lacked jurisdiction.

Ground 2 - failure to take account of mandatory considerations

• [36] There appeared to be three sub-grounds to the second ground advanced by Bright Days, being:

(a) the adjudicator failed to consider submissions made by Bright Days about the first ground (jurisdiction), and thereby failed to comply with s 88(2)(d) of the Act;

(b) the adjudicator failed to consider submissions made by Bright Days about a payment which Bright Days had made to ATG after its Payment Schedule had been served, but before the adjudicator issued the adjudication decision, and thereby failed to comply with s 88(2)(d) of the Act; and

(c) in failing to consider Bright Days' submissions about that subsequent payment, the adjudicator failed to determine the "amounts of the progress payment ... to be paid" as required by s 88(1)(a) of the Act.

• [37] In these ways, Bright Days submits that the adjudicator has fallen into jurisdictional error.
• [38] As to the first sub-ground, Bright Days made the same submission to the adjudicator which it made in this court, being that the effect of Mr Trattler's email of 2 November was a "decision" under s 84(2)(a)(i) that he did not have jurisdiction to adjudicate the application, that there was no power to refer the matter for a second adjudication under s 94, meaning the adjudicator did not have jurisdiction to determine the application.
• [39] It is true that the adjudicator did not expressly refer to the matter having been previously allocated to Mr Trattler, who then by his email of 2 November declined to decide it.
• [40] However, it cannot be said that the adjudicator did not turn his mind to the question of jurisdiction. The adjudicator set out at paragraphs [13] to [33] of the decision, that before he decided the adjudication application, he had to decide whether he had jurisdiction to so adjudicate it. He addressed the matters necessary to reach that conclusion including that there was a construction contract to which the Act applied, a payment claim had been served on a person who is or may be liable to make a payment, an adjudication application had been made and the application had been "referred to and accepted by an eligible adjudicator". The adjudicator then turned to consider each of those matters, and concluded at paragraph 30, that he was satisfied that he had jurisdiction to adjudicate the application.
• [41] It was common ground between the parties that for this argument to succeed, Bright Days must demonstrate:

(a) first, that the adjudicator failed to comply with s 88(2)(d) by failing to consider Bright Days' submission; and

(b) second, that the adjudicator's failure to comply with s 88(2)(d) was material in the sense that there was a realistic possibility that a different decision could have been made had there been compliance with that condition.

• [42] Bright Days submits, in effect, that because the adjudicator did not expressly refer to the submissions pertaining to Mr Trattler's email of 2 November that he must have failed to consider it. In this way, Bright Days contends there was a jurisdictional error by the adjudicator in the performance of the adjudication function.
• [43] What constitutes jurisdictional error under the Act was set out authoritatively by Bond J, as his Honour then was, in Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd.[3] I summarised his Honour's conclusions recently in Chevron Park Pty Ltd v Groupline Constructions Pty Ltd & Ors[4] and no party contended that that summary was inaccurate. For brevity, and with no disrespect to his Honour's more thorough analysis, I repeat the summary below:

"[30] (a) the valid exercise of an adjudicator's jurisdiction is conditioned on the decision having complied with at least the "basic and essential" statutory requirements of the Payment Act at ss 64, 68, 70, 75, 79(4), 80, 81, 88 and 150;

(b) the valid exercise of an adjudicator's jurisdiction is conditioned on the adjudicator having arrived at their conclusion by a process which considers the matters set out in s 88(2) of the Payment Act, noting:

(i) the valid exercise of the adjudicator's jurisdiction is not conditioned on the adjudicator reaching what is objectively the correct conclusion of all the questions of fact or law required by the consideration of the matters set out in s 88(2);

(ii) the question is not whether the court would have come to the same conclusion as the adjudicator, but whether the adjudicator arrived at their conclusion by a process which failed to consider the matters set out in s 88(2);

(iii) an error in the identification of the terms of the contract or their interpretation will not be a jurisdictional error;

(iv) there is a difference between an error which is not a jurisdictional error and that which is; and

(v) if it can be demonstrated that the adjudicator has not gone about their task by carrying out the active process of intellectual engagement with the issues and the submissions before them that the Payment Act requires, then they will have fallen into jurisdictional error because they will not have done the very thing that s 88(2) requires them to do.

(c) the valid exercise of the adjudicator's jurisdiction is conditioned on the adjudicator having arrived at their conclusion by a process which does not involve consideration of the matter set out in s 88(3)(b), being those matters which the adjudicator is required to ignore;

(d) failure to provide written reasons for the decision in compliance with s 88(5)(b) is a jurisdictional error;

(e) a valid exercise of an adjudicator's jurisdiction requires the adjudicator having provided parties with "the necessary level of procedural fairness"; and

(f) the valid exercise of the adjudicator's jurisdiction is conditioned on the adjudicator having made a good faith attempt to perform the function specified in s 88."

• [44] The jurisdictional error therefore to which Bright Days points, is a failure to consider "all submissions" within the meaning of s 88(2)(d). Specifically, Bright Days submits that the adjudicator failed to consider any of the matters pertaining to jurisdiction, primarily, it seems, because the adjudicator did not expressly refer to those submissions.
• [45] By its nature, an adjudication cannot and does not, refer to each and every thing that was said in the submissions. Further, an adjudication procedure is one which is intended to be "a quick and inexpensive interim procedure for builders to be paid for their work",[5] occurring in the context of "brutally fast" deadlines to ensure the prompt resolution of payment disputes.[6] The question is not to be approached solely by reference to the presence or absence of explicit statements referring expressly to particular submissions, but should be considered in the context of the whole of the content and tenor of the adjudication.[7]
• [46] Here, in my view, the adjudicator having expressly considered the question of whether he was an "eligible adjudicator" and concluded that he was, the adjudicator demonstrated, by the content and tenor of his reasons, that he had considered the question of eligibility. In those circumstances, he did not fail to take account of the submission, not expressly referred to, that he was in fact ineligible.
• [47] Even were that not so, the adjudicator's alleged failure to comply with s 88(2)(d) was not material in the sense that there was not a realistic possibility that a different decision could have been made because he would have had to conclude (as I have above), that Mr Trattler's email of 2 November was not a "decision", and therefore that he, the second adjudicator, had to decide the matter.
• [48] That sub-ground is not made out.
• [49] It is convenient to deal with the second and third sub-ground together. That is particularly so as the oral argument was developed quite differently to the written outline.
• [50] Here, the alleged failure to consider was in respect of submissions made by Bright Days about a payment which Bright Days had made to ATG after its Payment Schedule had been served, but before the adjudicator issued the adjudication decision, and thereby failed to comply with s 88(2)(d) of the Act. In the written outline, this was described as:

"40. The payment of $719,435.45 on 1 November 2023 was not included in ATG's adjudication application (dated 19 October 2023), and ATG did not bring the payment to the attention of the Adjudicator during the course of the adjudication which led to the Impugned Decision."

• [51] The relevant detail of the Payment Schedule is set out at [62(b)] below.
• [52] After the Payment Schedule, but as part of its adjudication response, Bright Days identified that on 1 November 2023, it paid the amount of $719,435.45 which it submitted to the adjudicator was payment in full for the works in the Payment Claim.
• [53] The $719,435.45 payment therefore was made, approximately, two weeks after the Payment Schedule, but well before ATG requested the second adjudication.
• [54] Bright Days submits that the second adjudicator ought to have taken the payment into account, noting that the following post-dated the payment:

(a) the first adjudicator determined on 2 November 2023 that he did not intend to issue a decision;

(b) on 7 December 2023, ATG requested the Registrar refer the original application to another adjudicator;

(c) on 13 December 2023, the second adjudicator accepted the referral;

(d) on 19 December 2023, ATG provided the original adjudication application to the second adjudicator;

(e) on 20 December 2023, Bright Days served its adjudication response.

• [55] Bright Days submits that s 88(1)(a) of the Act requires an adjudicator "to decide...the amount of the progress payment, if any, to be paid..." and as such must take into account payments which have been made even if they post-date the Payment Schedule. Bright Days relies upon a decision of the Western Australian Supreme Court of Duro Felguera Australia Pty Ltd v Samsung C&T Corporation[8] to support the contention that an adjudicator has a statutory obligation to consider what amount should be paid at the time of the decision, and that this requires the ascertainment of the extent of that liability by way of credit or other offsetting "at the date of [the]...determination".[9] In particular, at [37] Martin CJ said:

"[37] ... because the question which must be determined by the adjudicator is the question of whether any party to the payment dispute is liable to make a payment, the adjudicator is required to ascertain that liability as at the date of his or her determination. To give an obvious example, if the respondent had paid an amount to the claimant after the application for adjudication had been lodged, clearly an adjudicator would be required to take that payment into account in making his or her determination ..."

• [56] ATG submits that the Construction Contracts Act 2004 (WA) being considered by Martin CJ in Duro's case is materially different to the Queensland legislation under consideration here. Importantly, ATG submits that the Western Australian legislation contains no concept of a "reference date" as exists in the Queensland legislation. Rather, the concept of a payment dispute in the Western Australian legislation is a much broader concept than that of a payment claim in the Queensland Act. ATG contends that Duro's case is distinguishable and of little assistance in determining the proper interpretation of s 88(1)(a) of the Act.
• [57] ATG urges that the court follow the decision in Chevron where a similar argument was raised in relation to payments which post-dated both the Payment Claim and the Payment Schedule. ATG urges that I adopt the same approach as I did in that case at paragraphs [52] to [62] where I held (ATG's underlining added):[10]

"[52] Chevron submits that s 88(1) of the Payment Act provides that the adjudicator is to decide the amount of the progress payment, if any, to be paid by the respondent to the claimant, which necessarily requires the adjudicator to consider not just the construction work to which the payment claim relates, but also whether any of the amounts claimed have been discharged, either by payments made or by operation of statute. Chevron submits that means the adjudicator should have deducted from the adjudicated amount both the Past Payments and the Subsequent Payments.

[53] Chevron emphasises the words "to be paid" in s 88(1)(a). In deciding the adjudicated amount "to be paid" pursuant to s 88, Chevron submits that it is "axiomatic" that there must be "reconciliation" by the adjudicator of the amount claimed against the amounts known to have been paid in respect of the amount claimed.

[55] I do not accept that construction of s 88(1) for the following reasons.

[56] First, pursuant to s 88(1)(a), the adjudicator is to decide "the amount" of the progress payment to be paid; that is the adjudicated amount. The adjudicated amount is linked to the payment claim (pursuant to s 68), and the payment schedule (pursuant to s 69) which responds to the payment claim. By s 68, the amount is expressly linked to the identified "construction work" or "related goods and services" to which the progress claim relates. Those are each defined terms under the Payment Act. The adjudication therefore is in respect of the work which has been done or is claimed to be done under the payment claim.

[58] Second, Chevron's construction reads into s 88(1)(a) words which do not appear there. Chevron contends that s 88 requires a determination of how much of the claimed amount "is remaining to be paid at the date of the decision". No such words appear in, or can be read into, s 88(1).

[59] To the extent that the section identifies the date on which any amount became or becomes payable, s 88(1)(b) identifies that the adjudicator must decide that date; but the date is identified by reference to other provisions of the Act. Specifically, s 67 provides the definition of a "reference date" for a construction contract, which means a date stated in, or worked out under, the contract as the date on which a claim for a progress payment may be made for construction work carried out, or related goods and services supplied under the contract. PC19 was concerned with a reference date of 28 December 2023. The date was not in dispute. The date was not the date the adjudicator made his decision (6 June 2024) as submitted by Chevron, nor could it be having regard to the mandatory considerations to which the adjudicator must have turned his mind pursuant to s 88(2).

[60] Third, the Subsequent Payments which Chevron contends ought to have been taken into account by the adjudicator post-dated the reference date. Nothing on a fair reading of s 88 suggests that the adjudicator ought to take into account events which post-dated the date to which the adjudicator was required to turn his mind, even if they were the subject of submissions.

[61] Fourth, it further follows that the adjudicator's decision cannot have regard to the Subsequent Payments when the terms of s 88(3) are considered. That is because the adjudication response which is provided by a respondent must not include any new reasons for withholding payment that were not included in the payment schedule given to the claimant. As much was made clear by Bond J in Acciona where his Honour described that the legislative intention was clear that there were certain matters which the adjudicator "must not" consider because the respondent was prohibited from raising them.

[62] It follows that Chevron was not entitled to include reference to reasons which arose after the date upon which it delivered its payment schedule, which was 31 January 2024. In circumstances where none of the Subsequent Payments were made until February 2024, Chevron could not properly have adduced that evidence in any event."

• [58] ATG urges that this is a proper construction of s 88(1)(a), because what the adjudicator is doing is valuing the construction work done under a Payment Claim as at the reference date. The adjudicator is not determining a party's residual liability to another at the time of the adjudication decision. Acknowledging that Chevron was decided without any party having referred the court to Duro's case, ATG submits it would not have made any different to the conclusion.
• [59] In contrast, Bright Days submits that what the adjudicator is to decide pursuant to s 88(1)(a) of the Act, is not the amount of the progress payment itself, but the amount of the progress payment "to be paid" by Bright Days to ATG. Bright Days places emphasis on those words, read in conjunction with the provisions of s 90(1) which section applies "... if an adjudicator decides that a respondent is required to pay an adjudicated amount" then the respondent must pay the amount on or before the day that is five business days after the day on which the adjudicator gives a copy of their decision to the respondent.[11] But where a payment has been made, as here, after the Payment Schedule but before the adjudicator makes his adjudication, the adjudicator was obliged to take the payment into account in order to determine the amount of the progress payment "to be paid" pursuant to s 88(1)(a).
• [60] Here, Bright Days submits the adjudicator found there was no dispute about the value of the work under the contract, ATG having accepted Bright Days' assessment of the amount payable for the original scope of the work under the contract for the purposes of the adjudication application, being $979,396.78. Bright Days contends however, that the issue is the amount which was actually payable to the first respondent at the date of the determination, taking into account the further payment of $719,435.45 prior to the adjudication.
• [61] Bright Days contends that it raised the issue of those payments being relevant to the amount due in this adjudication in the following ways:

(a) the Superintendent's certificate, pertaining to Progress Payment 22 dated 10 October 2023, which records the following "qualification":

"The Superintendent's assessment of Progress Claim 21 is an assessment of this particular progress claim. It does not take into account the state of the account between the Principal and the Contractor, and therefore does not reflect the balance of any amounts due to be paid by the Principal to the Contractor. As such, the amount the Principal intends to pay for Progress Claim 21 may not align with the amount identified in the Superintendent's assessment. It is also noted that the Principal has a right of set off under clauses 37.2 and 37.6 of the Contract..."

(b) in Payment Schedule 11 of 17 October 2023, Bright Days recorded:

Approved Complete (at time of claim) $ Works Under Contract total

Approved Complete (at time of claim) $ Variations total

Sub-total Approved Complete (at time of claim) $ Works Under Contract and Variations excluding retention and GST

The scheduled amount is $71,158.00 in accordance with the Deed of Settlement and Release dated 9 August 2023 by which the parties compromised their rights and obligations. This amount represents the GST as calculated by the Superintendent's progress certificate 22, dated and sent 10 October 2023.

(c) in its adjudication response of 20 December 2023, Bright Days identified:

(i) that the adjudicator (if he had jurisdiction) was to determine whether ATG was entitled to $228,683.35 for VAR087 and $206,263.41 for VAR088;

(ii) that Bright Days maintained that no further payment was owing for the Payment Claim or alternatively, ATG had "been paid the full amount of its entitlement for the works complete";

(iii) that ATG had been paid the amount of $719,435.45 for the works completed, specifically at paragraph [92(c)] Bright Days said:

(c) the Claimant has been paid the amount of $719,435.45 for the works complete in accordance with the Agreements, and specifically the Lender's assessment of works as evidenced at paragraph 15 of the Johnson Declaration;

93. Accordingly, the Claimant has been paid the full extent of its contractual entitlements in respect of the works claimed in the Payment Claim and there is no further amount to be awarded in this Adjudication."

(iv) further, in the material included in the Adjudication Response, a statutory declaration of Davin Johnson asserted that:

• (A) on 1 November 2023, ATG was paid $719,435.45; and
• (B) there had been overpayments made to ATG, and proof of the particular payment of $719,435.45 was exhibited to that declaration.

• [62] When this evidence is considered, Bright Days submits that the adjudicator had an obligation pursuant to s 88 to consider the submissions which had been made about the amount which was "payable" to the first respondent, giving proper regard to Bright Days' submissions that in fact the sum of $719,435.45 had already been paid.
• [63] The crux of the submission for Bright Days is that because the Payment Schedule of 17 October 2023 asserted that Bright Days was in "credit balance after PPS 11", Bright Days was not precluded from referring to the subsequent payment of $719,435.45 as it was related evidence of the asserted credit balance, even if it meant bringing in evidence of payments which were made after the Payment Schedule.
• [64] It can be accepted that nowhere in the adjudicator's decision does the adjudicator refer to the submissions or the evidence to which Bright Days referred in its adjudication response (set out at [61] above), including at the heading "Parties' submissions". In particular, the adjudicator did not make reference to the asserted credit balance in the Payment Schedule as set out at [61(b)] above. But Bright Days' asserted correlation between the stated "credit balance" of $382,235.64 as at the date of the Payment Schedule, and the later payment of $719,435.45 remained opaque throughout the hearing.
• [65] ATG contends that the reference to the Bright Days asserted credit balance after PPS 11 of $382,235.64 cannot be construed as a reference to a payment which had not yet been made, and so could not be a reference to the payment of $719,435.45 which was made on 1 November 2023.
• [66] Proceeding on the basis of the reasoning in Chevron's case at [52] to [62], the core dispute on this issue comes down to this. If the Payment Schedule of 17 October 2023 did not identify (expressly, or by inference or incorporation) the payment which was subsequently made on 1 November 2023, then Bright Days was precluded from relying upon that payment in the adjudication because that payment would have constituted new reasons within the meaning of s 82(4). If, however, the court is satisfied that that payment was in fact referred to, or somehow foreshadowed, in the Payment Schedule, then it might be accepted that the adjudicator wrongly ignored all the submissions relevant to that payment.
• [67] The highest that Bright Days was able to put its submission was that the later payment of $719,435.45 (which it characterised as a credit) was effectively raised in the Payment Schedule by reference to the line which records:

"$382,235.64 - Bright Days credit balance after PPS 11"

• [68] In oral submissions Bright Days accepted that there were "difficulties with that figure", but nevertheless maintained that because Bright Days had asserted in the Payment Schedule that there was money owing to it, the adjudicator ought to have dealt with that issue. If he did that, so the argument goes, he would have then had to also consider the further payment on 1 November 2023.
• [69] So far as the argument relies upon the failure to consider the payment of $719,435,45, it must be rejected. The further payment of $719,435.45 which was made after the Payment Schedule is factually distinct from the asserted "credit balance". The sum cannot be said to be an explanation of an issue raised in the Payment Schedule when it was not a factual matter that existed at the time of the Payment Schedule. Bright Days' submission in that regard really went no further than to identify that simply because Bright Days asserted that a credit was owed to it at the time of the Payment Schedule, any other matters going to Bright Days' asserted credit, even those that arose much later, would be ones which would be relevant for the adjudicator to consider. I reject that approach because:

(a) the submission demonstrates that Bright Days was seeking to rely upon new reasons (i.e. a payment made long after the Payment Schedule) within the meaning of s 82(4) of the Act which the adjudicator was right to ignore; and

(b) the sum of $719,435.45 was not a "credit" in the way, Bright Days seeks to characterise it; it may have been a discharge of indebtedness for work under the contract, but it was not a credit.

• [70] It is also worth observing, that if the payment had in fact been a complete payment of the amount stated in the Payment Claim before the adjudicator decided the application, Bright Days ought to have asserted that it had paid the Payment Claim and sought to withdraw from the adjudication pursuant to s 97 of the Act. That it did not do so rather suggests the payment was something less than full payment.
• [71] At the conclusion of the oral argument, Bright Days raised a further submission which had formed no part of the written argument. The argument seemed to be that in fact what the adjudicator had failed to consider in accordance with s 88(2) was the asserted "credit balance" of $382,235.64 as set out in the Payment Schedule (see [61(b)] and [67] above). I deal only briefly with this issue as it was raised, at best, in passing by Bright Days.
• [72] I accept that the adjudicator did not make any specific reference to this line item of the Payment Schedule. A failure by an adjudicator to consider a submission will, if material, constitute a jurisdictional error.[12] However the failure to identify a particular claim or response in reasons will not, of itself, demonstrate that the adjudicator has failed to consider it.[13] What constitutes a failure to consider all submissions including relevant documents, is a factual question in any particular case.
• [73] Here, whilst there was a one-line reference to the "credit balance", it did not form the basis for any developed submissions by Bright Days before the adjudicator. Rather, aside from the jurisdiction issue, Bright Days described the "Overview of the Issues in Dispute":

"27. The matters in dispute in this adjudication are:

(c) ...whether the Claimant is entitled to payment for:

(i) the sum of $954,406.40 for works complete; and

• [74] Further, at the "Summary of the Parties' Positions", Bright Days submitted:

"28. The Respondent's position can be summarised as follows:

(b) ... the Adjudicator should value the Claimant's entitlement to payment in accordance with both the D&C Contract and the Settlement Deed (the latter varying for former), and find that no further payment is owing to the Claimant under the D&C Contract for this Payment Claim;

(c) further in the alternative, the Adjudicator should find that the Claimant:

(i) has been paid the full amount of its entitlement for the works complete; and

• [75] The reference to the "full amount of its entitlement for the works complete" was footnoted to the evidence in support of the payment of the $719,435.45, not to any evidence in relation to the asserted "credit balance" of $382,235.64.
• [76] Bright Days adjudication response does go on to identify some further submissions in relation to the asserted "credit balance". The following appears at pages 10 and 11 of the adjudication response:

1. On 17 October 2023, the Respondent provided a Payment Schedule, certifying a credit balance in favour of the Respondent in the sum of -$382,235.64 (Payment Schedule).

1. The Respondent accepts that the Payment Schedule states the amount it proposes to pay is $71,158.00 but says that amount is not due and owing as it has been reduced by overpayments made by the Respondent in accordance with the Settlement Deed.
2. Further, while having no effect on any amounts to be paid to the Claimant, the Respondent brings to the Adjudicator's attention a miscalculation in the credit balance recorded in the Payment Schedule. That is, the sum of -$382,235.64 should correctly be stated as -$32,060.02.
3. This is because the payment that the Respondent was liable to pay of $71,158, when reduced by the previous months correct credit balance of $103,218.02 brings the Scheduled Amount to -$32,060.02. The Respondent concedes this deduction in the amount it has scheduled whilst acknowledging that it has no consequence on the amount to be paid to the Claimant in this Adjudication which remains at Nil."

• [77] Properly understood, Bright Days was not in fact contending that the asserted credit balance ($382,235.64), or even the corrected credit balance ($32,060.02), was a matter which was of any consequence to the adjudication. In that factual context it cannot be concluded that there was any jurisdictional error by the adjudicator failing to identify the "credit balance" issue at all. Bright Days itself had acknowledged that the "credit balance", whatever its amount, was of "no consequence" on the amount to be paid to ATG in this adjudication.
• [78] In the circumstances the adjudicator's failure to refer to this submission, was not a "centrally important matter, clearly articulated and based on uncontested facts" in the way described in Ceerose.[14] Rather the adjudicator's reasons reflect the practical circumstances under which he was operating.[15] In the circumstances, given how the case was advanced by Bright Days[16] I am satisfied that there was no failure by the adjudicator to consider the issue in relation to the asserted "credit balance".
• [79] The application is dismissed, with costs.

[1] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 95(4).

[2] S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2020] QSC 307 at [30].

[3] [2020] QSC 133; (2020) 4 QR 410.

[4] [2024] QSC 202 at [30].

[5] Lendlease Building Pty Ltd v BCF Airport Systems Pty Ltd & Ors [2024] QSC 164 at [103].

[6] Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at 17.

[7] Shellbridge Pty Ltd v Rider Hunt Sydney Pty Ltd [2005] NSWSC 1152 at [20].

[8] [2018] WASCA 28; (2018) 52 WAR 323.

[10] Chevron Park Pty Ltd v Groupline Constructions Pty Ltd & Ors [2024] QSC 202 at [52]- [53], [55]-[56], [58]-[62].

[11] Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 90(2)(a).

[12] Martinus Rail Pty Ltd v Qube RE: Services (No 2) Pty Ltd (No 2) [2024] NSWSC 1223 at [193] - [197]; Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd & Ors [2012] QSC 373.

[13] Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215; (2023) 112 NSWLR 225 at [62].

[14] Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215; (2023) 112 NSWLR 225 at [69].

[15] Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd [2025] NSWCA 49 at [68].

[16] Lendlease Building Pty Ltd v BCF Airport Systems Pty Ltd & Ors [2024] QSC 164 at [217].