CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS –
REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO
AND RECOVERY OF
PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the
Source
Original judgment source is linked above.
Catchwords
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS –REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TOAND RECOVERY OFPROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where theapplicant and the first respondent wereparties to a written contract for thedesign, manufacture, supply and delivery of works – where the applicantserved on thefirst respondent a payment claim – where the firstrespondent served on the applicant a payment schedule which disputed anyamountas owing under the payment claim – where the applicant applied foradjudication of the payment claim – where thesecond respondent wasappointed as the adjudicator – where the second respondent decided that hedid not have jurisdictionto determine the applicant’s adjudicationapplication, which he dismissed – where the second respondent decided thatthe applicant had contracted to perform work outside the scope of its licenceand thereby contravened s 42(1) of the Queensland Building and Construction
Commission Act 1991 (Qld) – where the applicant has applied to the
court for a declaration that the adjudicator’s decision is void because
of
jurisdictional error – where the existence of a valid construction
contract is a prerequisite to the exercise of an adjudicator’s
jurisdiction under the Building Industry Fairness (Security of Payment) Act
2017 (Qld) – where the existence of a valid construction contract is a
matter of objective jurisdictional fact – where the
court is required to
determine de novo whether the objective fact existed – whether on
the proper construction of the contract, the applicant contracted to perform
work outside the scope of its licence – whether the second
respondent’s decision is void because of jurisdictional error
Building Industry Fairness (Security of Payment) Act 2017 (Qld), s
67, s 101(4)
Queensland Building and Construction Commission Act 1991
(Qld), s 42(1)
Acciona Agua Australia Pty Ltd v Monadelphous
Engineering Pty Ltd [2020] QSC 133
(2020) 4 QR 410, cited
Agricultural & Rural
Finance Pty Ltd v Gardiner (2008) 238 CLR 570, followed
Australian
Broadcasting Commission v Australasian Performing Right Association Ltd
[1973] HCA 36
(1973) 129 CLR 99, cited
Australian Timber & Trusses Pty
Ltd v T&M Buckley Pty Ltd [2012] QSC 110, distinguished
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7
(2014)
251 CLR 640, cited
Ingeteam Australia Pty Ltd v Susan River Solar Pty
Limited [2024] QSC 30, cited
Mount Bruce Mining Pty Ltd v Wright
Prospecting Pty Ltd [2015] HCA 37
(2015) 256 CLR 104, cited
Pacific Carriers Ltd v
BNP Paribas [2004] HCA 35
(2004) 218 CLR 451, cited
SHA Premier Constructions Pty
Ltd v Niclin Constructions Pty Ltd [2020] QSC 307, considered
Sutton v Zullo Enterprises Pty Ltd [1999] QCA 417
[2000] 2 Qd R 196, cited
Judgment (146 paragraphs)
[1]
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 were parties to a written contract for the design, manufacture, supply and delivery of works - where the applicant served on the first respondent a payment claim - where the first respondent served on the applicant a payment schedule which disputed any amount as owing under the payment claim - where the applicant applied for adjudication of the payment claim - where the second respondent was appointed as the adjudicator - where the second respondent decided that he did not have jurisdiction to determine the applicant's adjudication application, which he dismissed - where the second respondent decided that the applicant had contracted to perform work outside the scope of its licence and thereby contravened s 42(1) of the Queensland Building and Construction Commission Act 1991 (Qld) - where the applicant has applied to the court for a declaration that the adjudicator's decision is void because of jurisdictional error - where the existence of a valid construction contract is a prerequisite to the exercise of an adjudicator's jurisdiction under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) - where the existence of a valid construction contract is a matter of objective jurisdictional fact - where the court is required to determine de novo whether the objective fact existed - whether on the proper construction of the contract, the applicant contracted to perform work outside the scope of its licence - whether the second respondent's decision is void because of jurisdictional error
An application to declare an adjudicator's decision void
[16]
[1] The applicant ("Pico"), as the supplier, and the first respondent ("Coast"), as the client, executed a written contract headed "Supply Contract" ("the contract"). Coast, formerly known as Ardent Leisure Group Ltd, operates the Dreamworld theme park in Coomera. Broadly, the contract concerned the "design, manufacture, supply and delivery of Works", described as theming and show elements, for a new precinct at Dreamworld called "Rivertown" which would be the home of the "Jungle Rush ride" and the "Murrissippi Motors ride".
[2] On 28 January 2025, Pico served on Coast a payment claim which claimed payment of an amount of $555,890.26 (inclusive of GST). The payment claim was made under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) ("the Payments Act") and was described as Pico's "final claim and invoice for the supply of goods under [the contract]". The goods the subject of the invoice had been delivered to site on 17, 18 and 19 December 2024.[1] The reference date for the payment claim was 17 December 2024. On 11 February 2025, Coast served on Pico a payment schedule which disputed any amount as owing under the payment claim and identified an amount owing to Coast of $313,244.94 (inclusive of GST). On 25 March 2025, Pico applied for adjudication of the payment claim. The second respondent ("the adjudicator") was appointed under the Payments Act as the adjudicator. By a written decision dated 22 April 2025, the adjudicator decided that he did not have jurisdiction to determine Pico's application, which he dismissed. The adjudicator's decision that he lacked jurisdiction was made by reference to two independent grounds.
[3] As to the first ground, the adjudicator decided that Pico had "undertaken to carry out building work when it entered into the [c]ontract in circumstances where it did not hold the relevant class of licence permitting it to lawfully do so". The adjudicator found that Pico had thereby contravened s 42(1) of the Queensland Building (Qld) ("the QBCC Act"). The adjudicator reasoned:
[17]
" ... Pico had no contractual right to be paid for performance of the work it had undertaken to perform under the [c]ontract, thus it could not avail itself of the mechanisms of the [Payments Act] and so I did not have jurisdiction under the [Payments Act] to adjudicate its application for payment against the [p]ayment [c]laim".
[18]
[4] It was common ground that, if Pico had contracted to perform work outside the scope of its licence, it would have contravened s 42(1) of the QBCC Act and would then have had no contractual right to be paid for the performance of the work it had promised to undertake. If it had no contractual right to be paid for the performance of the work which it had promised to undertake, then the adjudicator had no jurisdiction to decide that Pico was entitled to a progress payment under the Payments Act.[2]
[5] As to the second ground, the adjudicator decided that the payment claim was not given in respect of a valid "reference date", as that phrase is used in s 67 of the Payments Act and was not a valid payment claim. The adjudicator reasoned that there was "an absence of a reference date to support the [p]ayment [c]laim" and that "a reference date ... had not arisen".
[6] Pico has applied for a declaration that the adjudicator's decision is void because of jurisdictional error. Pico asserts jurisdictional error in respect of each ground on which the adjudicator based his decision.
[7] At the outset of the hearing of this application, Coast conceded that the adjudicator's decision, to the extent that it was based on the second ground, that relating to the reference date, was affected by jurisdictional error. Notwithstanding that concession, Coast maintained that the adjudicator's decision was valid based upon his reasoning in relation to the first ground and the suggested contravention of s 42(1) of the QBCC Act. As the application was argued, the principal issue was whether the adjudicator's decision was affected by jurisdictional error to the extent that it was based on the first ground. In that context, Coast made a further concession to the effect that the adjudicator's relevant finding was that Pico had undertaken to carry out, as distinct from had carried out, building work within the meaning of s 42(1) of the QBCC Act.[3] Coast maintained that this finding was correct because, by the contract, Pico had undertaken to carry out building work. According to the adjudicator's finding, the asserted invalidity of the contract arose because Pico had undertaken to carry out building work. The finding or conclusion that Pico had undertaken to carry out building work depended upon the proper construction of the contract.
[19]
"In the context of the statutory scheme created by the [Payments Act], an error by an adjudicator in finding that he or she has jurisdiction or lacks jurisdiction is, almost by definition, a jurisdictional error."
[20]
[10] The existence of a valid construction contract is a prerequisite to the exercise of an adjudicator's jurisdiction under the Payments Act and, therefore, whether or not there is such a contract is a jurisdictional fact.[7] In SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd,[8] Bond J provided the following explanation of the significance of a statutory pre-condition to an exercise of power being able to be characterised as an objective or subjective jurisdictional fact:
[21]
"Reference to a jurisdictional fact may be a reference to the existence of some objective fact or condition. Alternatively, it may be a reference to a repository of power having a particular state of mind, for example, having reached a particular state of satisfaction or having made a particular determination. Leeming JA, writing extra-judicially, has distinguished between a precondition to the exercise of power which turns on 'the existence of a fact in the real world' and a precondition which requires the repository of power to have a particular 'state of mind'. Derrington J, also writing extra-judicially, made the same distinction by reference to the terms 'objective jurisdictional facts' and 'subjective jurisdictional facts'. I will adopt the latter taxonomy.
[22]
The determination whether a precondition to an exercise of power is the existence of an objective jurisdictional fact, or the existence of a subjective jurisdictional fact, is significant.
[23]
If the precondition to an exercise of power is the existence of an objective jurisdictional fact, then, if a challenge is brought to the existence of the jurisdictional fact, the Court's function is to determine de novo whether the objective fact existed. The Court determines the question upon the evidence before it, without being limited to the probative material before the repository of power. This is the course which SHA invited me to take."
[24]
[11] On this application, the existence of a valid construction contract is a matter of objective jurisdictional fact. The court's function in relation to the asserted jurisdictional error encapsulated by the first ground is to determine de novo whether the objective fact existed.
[25]
The contract, extrinsic facts and certain other matters
[26]
[12] Since 10 July 2023, Pico has held a "Builder Restricted to Structural Landscaping" class of licence issued by the Queensland Building and Construction Commission ("the QBCC"). That restricted licence provided for the following scope of work:
[27]
(1) Prepare, fabricate and erect carports, decking, fences, gates, gazebos, ornamental structures, pergolas, ponds and water features, prefabricated sheds, including associated concrete slabs, with a floor area of not more than 10m2, and retaining walls and structures.
[28]
(2) Construct artificial landform structures requiring a fabricated internal structure.
[29]
(3) Prepare site, excavate, lay paving or concrete associated with landscaping.
[30]
(5) Install, erect and construct playground equipment.
[31]
(b) for use in building work to be performed by the licensee personally.
[32]
(7) Construct, maintain and repair a tennis court or another sporting court, including, for example, the following -
[33]
(b) concrete for the construction, maintenance or repair of the court;
(c) apply materials or treatments to the surface of the court.
[34]
(8) However, the scope of work does not include personally carrying out any building work for which -
[35]
(a) a fire protection licence or mechanical services licence is required; or
[36]
(b) an occupational licence is required unless the licensee holds the occupational licence."
[37]
[13] On 24 July 2023, Coast, by its consultant, sent a letter to Pico in the following terms:
[38]
"RE: Dreamworld - Jungle Rush Roller Coaster Project - Letter of Intent
[39]
We refer to our recent discussions regarding the themed architectural elements in the Jungle Rush Precinct ...
[40]
Dreamworld are pleased to confirm their intention to appoint [Pico] as the theming contractor to design, supply and install the themed elements for the ... Rivertown Precinct ...
[41]
Dreamworld and its team of designers and consultants will work closely with [Pico] over the coming weeks to define the scope of works, construction methodology and fee for all themed areas, prior to us signing a definitive design and construct contract for the works. The intention is to proceed in line with the following scope of works:
[42]
[Pico] will provide design input as required and at no cost
[43]
to Dreamworld in order to progress the design to a stage where a fixed priced design and construction contract can be agreed.
[44]
[Pico] are to work to a global maximum budget for the
[45]
theming works across the Rivertown Precinct ... of $5,000,000. This is the fixed maximum budget for the themed element across the precinct.
[46]
The project must be complete by October 2024 ..."
[47]
[14] The contract was executed on 31 October 2023[9] and was headed "Supply Contract". The contract described Pico as "the Supplier" and Coast as "the Client". The recitals described Pico and its affiliated companies as "specialist fabricators for theme parks and themed environments". It was uncontroversial that Coast engaged Pico "in its capacity as a specialist fabricator (and supplier) for theme parks and themed environments".[10] Coast was described as developing the Rivertown precinct and being desirous of engaging Pico "to supply [theming] and show elements hereinafter referred to as the 'Works', in accordance with the Contract Drawings attached as Exhibit A and the Contract Price Breakdown and Rates attached in Exhibit C". The recitals then provided that "'[t]he Works' shall consist of 'Goods' and 'Services' as defined in the quotation". Pico was described as having agreed to "manufacture and supply the said Works".
[15] Article 1 of the contract was headed "Scope of Contract" and provided as follows:
[48]
"1.1 Supplier shall design, manufacture, supply and deliver the Works in accordance to the quotation in Exhibit A. The Exhibit A plans include the Schematic Design drawings for Package 1 and Supplier will further develop documentation for Packages 2 & 3. The design is subject to design development review and sign-off by the Client with reasonable adjustments to detailing and intent and to ensure material compliance. Show Audio and Lighting Provisional Sum items will be further specified and reviewed between Supplier and the Client, and the Client reserves the right to remove these from the scope of works and procure directly, subject to providing Supplier with written instruction.
[49]
1.2 The scope of Contract shall include design, engineering, manufacturing, supply and delivery of Works to the location of the Site, as specified in the attached quotation.
[50]
1.3 The Supplier shall ensure that the Works meet the standards in look & feel, durability and safety requested by the Client and as stipulated in local laws and building codes. Supplier shall be entitled to recover the reasonable cost of complying with any such standards that are promulgated after the date of execution of this contract."
[51]
[16] It is uncontroversial that "the quotation" was Exhibit C to the contract, not Exhibit A.[11]
[17] Article 2 of the contract was headed "Price, Payment and Taxes" and materially provided as follows:
[52]
"2.1 In exchange for delivering the Works as aforesaid, Client shall pay Supplier AUD 4,148,550 excluding [GST] (in words: Four Million One Hundred and Forty Eight Thousand, Five Hundred and Fifty Australian Dollars) (the "Contract Value"). The Contract Value includes:
[53]
2.2 The Contract Value shall be paid in the following instalments, against Supplier's invoice. The payments may be invoiced in parts where applicable and calculated according to the Contract Price Breakdown and Rates in Exhibit C. Payment shall be made within 10 working days into the [Supplier's] nominated bank account.
[54]
$414,855 being 10% of Contract Sum for Commencement of Concept and Schematic Design Stage
$414,855 being 10% of Contract Sum for Commencement of Sample and Mock-up Stage
$156,179 being 10% of Package 1a Sum for Completion of Detailed Design and Prior to Commencement of Fabrication of Package 1a
$100,809 being 10% of Package 1b Sum for Completion of Detailed Design and Prior to Commencement of Fabrication of Package 1b
$100,234 being 10% of Package 2 Sum for Completion of Detailed Design and Prior to Commencement of Fabrication of Package 2
$57,633 being 10% of Package 3 Sum for Completion of Detailed Design and Prior to Commencement of Fabrication of Package 3
$2,489,130 being 60% of Contract Sum to be Billed progressively after buy-off in factory and presentation of shipping documents
$414,855 being 10% of Contract Sum to be Billed progressively upon arrival of goods on site".
[55]
[18] Clause 2.4 of Article 2 noted that Coast was responsible for "the inspection, registration, [licences], permits, approvals, certifications, and all other fees necessary for installation and operation of the Works (except for any third party tests, certificates, verifications or approvals if so expressly specified to be included in the scope of Work and price)".
[19] Article 3 was headed "Liabilities and Indemnities". Clause 3.1 noted that "loss or damage to the Works will be for Client's account once such risk is transferred to Client which shall be from the moment of delivery of the Goods". Clause 3.8 provided as follows:
[56]
"3.8 Intellectual Property. The Supplier agrees and accepts that all documents as well as intellectual property created, made, conceived or otherwise arising from the performance of this Contract (all of which are collectively referred to as the 'Developments') are and remain the exclusive property of the Client as of the date of their creation, and that they are used by the Supplier only for the purpose of performing its obligations under this Contract. Provided, that the same has been paid for by the Client".
[57]
[20] Article 4 was headed "Confidentiality of Proprietary Information". Clause 4.1 provided as follows:
[58]
"4.1 The Supplier may make or has made available to the Client information concerning or relating to the Works, including, without limitation, designs, drawings, calculations, tracings, blueprints, specifications, descriptions, manuals, methods, economical/company/clients and/or technical know-how, patterns, tools, procedures, ideas, concepts or new technologies (the 'Confidential and/or Proprietary Information'). The Client agrees to hold all information received from the Supplier in confidence and shall not disclose or use such Confidential and/or Proprietary Information without the prior written consent of the Supplier. This Confidential and/or Proprietary Information shall remain the intellectual property of the Supplier, even if the Client is charged for these materials. The Client may retain copies of the Supplier's Confidential and/or Proprietary Information for use solely in the installation, testing, maintenance and operation of the Works and the Supplier may furnish at the Client's expense such additional copies as may be reasonably required by the Client for that purpose. The Client may disclose such Confidential and/or Proprietary Information to its employees and contractors only on a 'need to know' basis for such installation, testing, maintenance and operation, and shall ensure that such employees and contractors are bound by and adhere to the restrictions set forth in this article 4."
[59]
[21] Article 9 was headed "Responsibilities of Supplier" and materially provided:
[60]
"9.1 The Supplier shall submit detailed design drawings and other relevant design documents to the Client for obtaining the approval and acceptance from the Client in advance and shall be submitted in accordance with Exhibit B Schedule. The Client and/or their representatives shall respond within 5 days of receipt of each part with their comments and/or approval of the design documentation. The Supplier shall rectify the design documentation to the satisfaction of the Client and/or their representatives within 5 days from the date of receiving comments.
[61]
9.3 The Supplier shall carry out the Project in accordance with the design, quality assurance, compliance with the current process and regulations, requirements and technical standards of the Client and schedule as stipulated in this Contract. Works and all types of materials, components and equipment delivered to the Site must be of good quality in accordance with this Contract and the requirement of the Client.
[62]
9.5 The Supplier should be responsible for arranging the inspection of Works before shipment to the Site. Should the Works or any part thereof fail to conform with the terms and conditions of this Contract, the Client shall have the right to claim for replacement or repair, without further payments or charges. In case of claims related to insurance policy, the Supplier is responsible to solve all insured problems and comply with the insurance company's requirements."
[63]
[22] Article 10 was headed "Work Quality and Acceptance" and was in these terms:
[64]
"10.1 The quality of the Works shall comply with the terms and conditions of this Contract and the technical standards as stipulated herein.
[65]
10.2 The Supplier shall prepare the necessary documents to accompany the Works including installation instructions, operation and maintenance manuals and any spare parts as stipulated in the Contract."
[66]
[23] Article 13 was headed "Miscellaneous". Clause 13.3 of Article 13 materially provided:
[67]
"This Contract and the rights and obligations under this Contract may only be assigned by a Party to a third party with the prior written consent of the other Party."
[68]
[24] The recitals referred to "the Contract Drawings attached as Exhibit A". Exhibit A comprised a package of Schematic Design drawings for the Rivertown precinct described as "Package 1". It was apparent on their face that the drawings which formed part of exhibit A, had been previously prepared by Pico. The package of drawings which formed Exhibit A was introduced by a table of "General Notes" which were expressed to be applicable to all drawings produced by Pico. Relevantly, the General Notes provided:
[69]
1. These are schematic design drawings and as such are intended as a coordination tool describing design intent form.
[70]
2. Schematic drawings are not to be used for procurement or construction.
[71]
4. Approval of schematic drawings is the approval of the intent of design only. Adjustments to co-ordinate with other disciplines will be reflected in detail design drawings.
[72]
6. Details & general details are subject to change at later stages of design based on review from consultants & are for reference only at schematic design stages.
[73]
7. These drawings must be reviewed and co-ordinate (sic) by all consultants to ensure that final sizing and design of all structure design, lighting, plumbing, mech. & elec. And theme finishes are integrated and in keeping with shown design intent. Any discrepancies shall be reported (to Pico Play Pty Ltd) prior to commencement of work of further design stages.
[74]
12. Design assumes the received documents & drawings provided by the client accurately represent the existing conditions. Site, survey & other information provided by the client is used as the background for all design development and construction drawings.
[75]
13. Materials and constructions methods will first be approved & accepted by client and any applicable authority having jurisdiction. Approval shall be prior to procurement."
[76]
[25] Amongst the drawings which formed Exhibit A (which drawings were governed by the note that they were not to be used for construction and procurement):
[77]
(a) drawing number DR130-JR-11-402 contained a detail-typical section for "3m height queue line" and included information under a heading "Installation Phases" which described four phases of installation, "Notes" which included information about installation and detail of a typical section which included notes about the method of installation;
(b) drawing number DR130-JR-11-403 contained a detail plan and detail section for a prefabricated external wall panel and described welding and patching of entrapment holes;
(c) drawing number DR130-JR-11-410 contained a typical wall section for "external GRC panel" and described "plate to plate connections" and specified bolts.
[78]
[26] Exhibit B to the contract comprised a design and build program. The program was a one-page document headed "[Pico] Design and Build Program - Rivertown Precinct". The program identified the following tasks:
[79]
(a) Design (spanning 140 days between 3 August 2023 and 21 February 2024);
(b) Concept Design (spanning 70 days between 3 August 2023 and 8 November 2023);
(c) Schematic Design (spanning 70 days between 14 September 2023 and 20 December 2023);
(d) Detailed Design (spanning 90 days between 12 October 2023 and 21 February 2024);
(e) Sample and Mock Up (spanning 65 days between 12 October 2023 and 17 January 2024);
(f) Fabrication (spanning 180 days between 20 November 2023 and 2 August 2024 which included a shipping period spanning 150 days between 8 January 2024 and 2 August 2024);
(g) Installation (spanning 153 days between 12 February 2024 and 11 September 2024);
(h) Testing and Commissioning, Defects, Snagging (spanning 20 days between 12 September 2024 and 9 October 2024);
(i) Project completion by 10 October 2024.
[80]
[27] Exhibit C to the contract, being "the quotation" referred to in the recitals and Article 1, was a spreadsheet headed "Contract Price Breakdown and Rates". The spreadsheet described areas of the development of the Rivertown precinct and for each area provided a description, the procurement source and then distinguished between Portion A ("Design, Engineering and Supply to Site") and Portion B ("Installation Phase"). The column for procurement source variously identified Pico, "AV Contractor", "Supplier", "AVCL Sub-contractor" and "Sub-contractor". For each area and description of work there was a price referable to Portion A and a price referable to Portion B. The amounts in Portion A totalled $4,148,550 exclusive of GST. The amounts in Portion B totalled $1,260,950 exclusive of GST. The total price of Portions A and B was $5,409,500 exclusive of GST.
[28] On 15 May 2024, Herron Coorey Pty Ltd ("the builder") entered into a subcontract agreement with Pico as the sub-contractor ("the subcontract"). The recitals to the subcontract noted that the builder was undertaking the Rivertown precinct which was described as the project, had agreed to engage Pico as the sub-contractor to carry out subcontract work in connection with the project and had entered into the subcontract relying on Pico's representation that it was licensed and experienced in the type of construction work required for the subcontract works. The subcontract sum was $1,260,950 excluding GST.
[29] The scope of works the subject of the subcontract was described by Annexure B to the subcontract as follows:
[81]
"The extent of work will generally be as detailed in the Construction Issues Specification and Drawings and any other documents set forth pursuant to and are part of this subcontract.
[82]
The Subcontractor must as detailed in the drawings and specification and in strict accordance with the relevant standards, Authority requirements, carry out the Theming Cladding work providing all necessary set-out, materials, labour, plant and equipment to complete the works in a tradesman like manner, including but not limited to: Theming Cladding".
[83]
[30] Since 31 July 2024, Pico has held a "Builder-Open" class of licence issued by the QBCC.
[84]
By entering the contract, did Pico undertake to carry out building work?
[85]
[31] In Australian Broadcasting Commission v Australasian Performing Right Association Ltd,[12] Gibbs J said:
[86]
"It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, 'even though the construction adopted is not the most obvious, or the most grammatically accurate', to use the words from earlier authority cited in Locke v Dunlop ... which, although spoken in relation to a will, are applicable to the construction of written instruments generally; see also Bottomley's Case ... Further, it will be permissible to depart from the ordinary meaning of the words of one provision so far as is necessary to avoid an inconsistency between that provision and the rest of the instrument. Finally, the statement of Lord Wright in Hillas & Co Ltd v Arcos Ltd ... that the court should construe commercial contracts 'fairly and broadly, without being too astute or subtle in finding defects', should not, in my opinion, be understood as limited to documents drawn by businessmen for themselves and without legal assistance (cf. Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd ...)."
[87]
[32] In the context of the law of interpretation of contracts, the reference to a commercial contract includes a wide range of contracts with a commercial or mercantile character, including contracts for the supply of goods and services.[13] The terms of a commercial contract are to be understood objectively by what a reasonable businessperson would have understood them to mean.[14] The reasonable businessperson is someone placed in the position of the parties at the time of the contract.[15] It is from that person's perspective that the court considers the language used by the parties, the surrounding circumstances known to them and the commercial purpose and objects of the contract.[16]
[33] In many cases, it may be possible to undertake the process of construction by reference to the contract alone. Usually, the process of construction occurs by reference to the contractual text and contextual notice provided by that text. It is always legitimate to look to context apparent from, or provided by, the contractual language.[17] It may sometimes be legitimate to have recourse to events, circumstances and things external to the contract and which were known to the parties. Recourse to events, circumstances and things external to the contract may be necessary to identify the commercial purpose or objects of the contract "where that task is facilitated by an understanding 'of the genesis of the transaction, the background, the context ... in which the parties are operating'".[18] As a matter of general principle, "it is not legitimate to use as an aid in the construction of a contract anything which the parties said or did after it was made".[19]
[34] There is a presumption that a word or expression appearing in a contract is used with a consistent meaning.[20] However, the strength of that presumption depends on the circumstances of the case and the presumption does not operate as rule of general application.[21] Where a word has a clear meaning in a particular or local context, the presumption is displaced.[22] Further, the presumption may be readily displaced where the instrument is poorly drafted.
[88]
"The components which were manufactured and supplied by Pico were not the fixed structure itself, they were merely components to be incorporated into the fixed structure, the work of incorporation not being part of the works under Contracted [sic]. However, the 'design' including the preparation of plans and specifications for the performance of that work was part of the [c]ontract".
[89]
[37] The adjudicator's reasoning in support of his finding was in error, principally because, when construing the contract, he had regard to drawings produced by Pico after the contract.[28] The adjudicator referenced these drawings as providing "evidence of building work forming part of the [c]ontract, which upon entry into the [c]ontract Pico undertook to perform whilst not properly licenced under the QBCC Act to do".[29] The adjudicator's reasoning in support of his finding was also contradictory. He initially found that Pico had undertaken to manufacture and supply components and that the work of incorporation into the fixed structure was not part of the Works under the contract.[30] Later, the adjudicator found that the drawings comprising Exhibit A to the contract provided for "works to be performed on site by Pico",[31] and that Pico had "contracted to provide ... installation".[32] The adjudicator's interpretation of the drawings the subject of Exhibit A as containing details for construction,[33] that is the preparation of plans and specifications for the incorporation of components into fixed structures, was inconsistent with the General Notes applicable to those drawings, notably the notation that the drawings were "not to be used for ... Construction". Finally, the drawings which comprised Exhibit A were in existence as at the time of the contract. Those drawings comprised work which Pico had already performed prior to the contract. To the extent that by entering into the contract, Pico was said to have undertaken to perform building work being the preparation of plans or specification for the performance of building work, plans or drawings already in existence prior to the contract were not aptly described as the subject of an undertaking by Pico to carry out building work involving the preparation of plans.
[38] The following extrinsic facts were known to the parties at the time of the contract:
[90]
(a) Coast had engaged or retained, or intended to engage or retain, a designer and other consultants and contractors in respect of the development of the Rivertown precinct;
(b) Initially, as at in or about 24 July 2023, Coast had intended:
(i) for Pico to be appointed by Coast to design, supply and install the themed elements for the Rivertown precinct;
(ii) together with its designers and consultants, to work closely with Pico to define the scope of works, construction methodology and fee for all themed element areas of the Rivertown precinct;
(iii) to enter into with Pico a definitive design and construct contract for the then intended scope of works;
(iv) that the total budget for the design and construction of the Rivertown precinct would be $5 million;
(c) Coast engaged Pico pursuant to the contract in its capacity as a specialist fabricator and supplier for theme parks and themed elements;
(d) Pico had already prepared drawings which formed part of Exhibit A to the contract which were schematic design drawings intended as a coordination tool describing design intent form for the themed elements. Those drawings were not to be used for procurement or construction;
(e) Pico had also made available to Coast some information which was defined by the contract as "Confidential and Proprietary Information";
(f) Sub-contractors might be the procurement source of some goods or services described in Exhibit C to the contract;
(g) Documents and drawings, site survey and other information had been provided by Coast to Pico and was being used as background for all design development.
[91]
[39] Pico submitted that the clear objective contemplation of the parties was that "the works for the actual installation of works at the site, the actual physical works, was being dealt with under a separate contract".[34] That is, by the contract, Pico was not engaged to install the themed elements of the Rivertown precinct.
[40] The recitals provided that "[t]he Works shall consists of 'Goods' and 'Services' as defined in the quotation". Clause 1.1 referred to Pico being required to "design, manufacture, supply and deliver the Works in accordance to the quotation" (sic). Exhibit B then included as part of the program "Installation Phase" and Exhibit C referred to "Portion A- Design Engineering and Supply to Site" and "Portion B-Installation Phase". Despite the unqualified language of the recitals and the inclusion of the Installation Phase in Exhibits B and C, clause 1.2 provided that "the scope of [c]ontract shall include design, engineering, manufacturing, supply and delivery of Works to the location of the site as specified in the attached quotation" (sic). By clause 2.1, in exchange for Pico delivering "the Works", Coast was to pay "the Contract Value" being the sum of $4,148,550 excluding GST. The sum of $4,148,550 excluding GST only related to Portion A of Exhibit C. The value of the work the subject of Portion B of Exhibit C, the Installation Phase, was $1,260,950 exclusive of GST. That value was not otherwise explained or particularised in the contract. By clause 3.1, risk passed to Coast at the point of delivery of the Goods to site. Until such time as the Goods were fixed at the site or to structures at the site, the Goods were simply chattels.[35] Clause 4.2 made it clear that Coast would have its own contractors and employees involved in the installation work to be undertaken after the delivery of the Goods to site.
[41] Clauses 3.1 and 4.2, when read with the contract sum and the pricing in clause 2.1, strongly indicate that the parties objectively intended to excise from the contract any installation work that concerned or involved the fixing of the delivered Goods at the site or to structures at the site. That is, they objectively intended to excise that kind of building work from the contract. I find that the scope of the work the subject of the contract was limited to Portion A of Exhibit C and involved the design, engineering, and supply of the Goods to the site. The contract did not include the work the subject of Portion B of Exhibit C being the work the subject of the "Installation Phase", which I find was objectively intended to include any work that concerned or involved the fixing of the delivered Goods at the site or to structures at the site including the preparation of plans or specifications for the performance of that work.
[92]
[55] There were alternative arguments advanced by Pico in the event that the court found that, on the proper construction of the contract, Pico had undertaken to perform building work by preparing plans or specifications for building work. Given my finding in relation to the proper construction of the contract, it is strictly unnecessary for the court to consider those alternative arguments. It has been convenient to express the following brief reasons about the alternative arguments.
[56] Pico submitted that if "installation instructions" in clause 10.2 were construed as plans or specifications for the performance of building work, Pico had still not undertaken to perform building work because the contract, properly construed, did not preclude Pico's right to subcontract. Pico submitted that the contract prohibited assignment but not subcontracting. In some cases, a contractor is entitled to secure the vicarious performance of its obligations under a contract whilst remaining liable for non-performance.[48] It is a matter of construction of the contract whether or not the contractor has the right to secure vicarious performance.[49] In the building context, a contractor will have the right to secure vicarious performance where it objectively appears to be a matter of indifference whose hands should do the work.[50] A contractor will not have the right of performing by another if there is a prohibition in the contract on sub-contracting or there is some personal element in their obligation. The contract can be regarded as personal if it was made with the contractor because of their skill or special knowledge.[51] In the present case, it may be accepted that the contract, properly construed, permitted Pico to subcontract the obligation under clause 10.2 to prepare installation instructions. There was no prohibition on sub-contracting and Pico had been engaged because of its special expertise as a fabricator of themed elements but not for any special expertise as a builder or installer.
[57] However, to the extent that Pico placed particular reliance upon Australian Timber & Trusses Pty Ltd v T&M Buckley Pty Ltd,[52] I find that reliance to be misplaced. In Australian Timber & Trusses Pty Ltd, McMurdo J considered a supply contract which required a plaintiff to supply a document described as a "layout for both frames and trusses ... for use by the sub-contractors". In that case it was argued that the contractual requirement to supply such a document involved the preparation of a plan for the performance of building work for which the plaintiffs did not hold a licence. McMurdo J found that the layout plan required by the contract was a plan for the performance of building work. His Honour then relevantly reasoned as follows:
[93]
"What must then be considered is the effect of s 42 upon the plaintiff's entitlement to be paid by the first defendant for the goods which it delivered, as well as its entitlement to damages for breach of contract. As already noted, the contract did not require the layout to be prepared by the plaintiff. Rather, it required the plaintiff to supply a layout. It was open to the plaintiff to perform that contract by having someone else prepare the layout. Accordingly, by these contracts the plaintiff did not undertake to carry out (unlicensed) building work. The position here is thereby different from that in, for example, Sutton v Zullo Enterprises Pty Ltd. The performance of a contract in a manner which is illegal does not make the contract one which was itself forbidden by the relevant statute."
[94]
[58] The facts of the present case are different. By clause 10.2, Pico assumed a contractual obligation to prepare not simply to supply. In this alternative universe where "installation instructions" has a different meaning to the meaning I have found, by assuming an obligation to prepare installation instructions, Pico undertook to carry out building work. It is the undertaking which the QBCC Act prohibits and the undertaking is not excused because the performance of the building work the subject of the undertaking is subcontracted to a licenced person. In Sutton v Zullo Enterprises Pty Ltd[1999] QCA 417; [2000] 2 Qd R 196 at [3], McPherson JA relevantly observed:
[95]
"Section 42(1) provides that a person must not carry out, or undertake to carry out, building work unless that person holds a contractor's licence of the appropriate class under the Act. The statutory provision embodies two separate and distinct prohibitions. One is that a person must not 'undertake' to carry out building work unless appropriately licensed. The other is that such a person must not 'carry out' building work. The first of these two prohibitions is directed at an element in the formation or making of a contract to do building work."
"In this case, as I have said, s. 42(1) is cast in a form which expressly prohibits the formation (by 'undertaking' to carry out building work) of the contract itself. The result is, in my opinion, to make the contract entered into by the parties in this case unenforceable at least at the instance of the respondent, who is the person who was not appropriately licensed."
[98]
[60] There was a further argument advanced as to whether Pico's restricted licence covered the work in the event that the preparation of installation instructions was building work. Pico submitted that the themed elements were properly within the description of "ornamental structures". The court was not provided with any authorities explaining the meaning of that expression. On my objective reading of the contract, whilst many of the themed elements might properly be described as ornamental or decorative, some elements appear to be more functional such as precinct entry portals, fencing for exclusion zones, directional signage and TV screens with safety briefing video. I would conclude that not all of the Works the subject of the contract fell within the restricted licence held by Pico at the time of entering the contract.[55]
[99]
[61] The court received submissions in relation to the operation of s 101(4) of the Payments Act which materially provides that "in any proceedings before a court in relation to any matter arising under a construction contract, the court finds that only part of an adjudicator's decision ... is affected by jurisdictional error, the court may ... identify the part affected by the error ... and allow the part of the decision not affected by the error to remain binding on the parties to the proceeding". Ultimately, severance was not an issue because there was no part of the adjudication decision which was not affected by jurisdictional error.
[62] At the outset of the hearing of the application, Coast conceded that the adjudicator's decision was affected by jurisdictional error in respect of the second ground concerning the reference date. That concession was made in circumstances where Coast maintained that the adjudicator's decision was not affected by jurisdictional error and was valid to the extent that the adjudicator had decided that there was no enforceable contract because of the alleged contravention of s 42(1) of the QBCC Act. Whilst Coast did not contend as part of its argument that there was relevantly an enforceable contract, it orally applied to the court under s 101(4) of the Payments Act to sever the adjudicator's decision in circumstances where s 101(4) in terms speaks of "any proceedings before a court in relation to any matter arising under a construction contract". An issue arose as to whether Coast's concession and contention that there was no enforceable contract meant that s 101(4) had no application.
[63] Section 101(4) has been recognised as having a beneficial purpose and is required to be construed beneficially to ensure that the mischief to which the section is directed is remedied.[56] The mischief to which the section is directed is the perceived injustice where the identification of jurisdictional error results in the invalidity of an entire decision.[57] The section operates in the context of the exercise of the court's supervisory jurisdiction to review for jurisdictional error.[58] It has been held that the section should be applied to allow part of a decision not affected by jurisdictional error to remain binding on the parties. In my consideration, it would be a pedantic and less than beneficial interpretation of s 101(4) to confine its operation to circumstances where the party seeking severance does not contend that a construction contract is unenforceable. Section 101(4) may be availed of by the court of its own volition in the exercise of its supervisory jurisdiction. The words "in relation to any matter arising under a construction contract" should be interpreted beneficially and so as to include a situation, such as here, where one party, albeit it not the party seeking severance, contends for the existence of an enforceable construction contract.
[100]
[64] The orders I make are as follows:
I declare that the adjudication decision of the second respondent dated 22 April 2025 in relation to the applicant's adjudication application number 2813665 is void.
[4] T1-12.30-33; T1-54.20-22; Coast made reference to the definition of "building work services" in Schedule 2 of the QBCC Act but did not develop any substantive submission in relation to that definition.
[103]
[5]Ingeteam Australia Pty Ltd v Susan River Solar Pty Limited[2024] QSC 30 at [113].
[19]Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 at 582 [35]; Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 446.
[22] Herzfeld & Prince, Interpretation, 3rd Edition [22.60] citing Watson v Haggitt [1928] AC 127 at 130-131.
[118]
[23] Herzfeld & Prince, Interpretation, 3rd Edition [22.60] citing as an example Buick v Equity Trustees Executors & Agency Co Ltd[1957] HCA 65; (1957) 97 CLR 599 at 604.
[41] For example, AD 01 included "Various Themed Signage- Directional and Informational Signs"; MM 500 included "Various large rocks, broken columns, tree trunks, abandoned vehicles throughout precinct", "Various Props and Dressings", "Ride Car Theming (13 vehicles, I theme with prop variations)"; JR 00 included "Large Crystal over Entry portal, Stone Statues and Broken Columns, 10 stone column bases to coaster columns", "Artificial Branches and Vines, Artificial Hanging Foliage to building exterior"; JR Q03 included "Themed Directional Signage"; JRQ07 included 'Extensive faux timber or bamboo scaffold with rope lashing" and JR 501 included "Mechanical Show Sets with levers and wheels synced with ride system".
[55] It would have been sufficient for Coast to show that any part of the work which Pico undertook to carry out under the contract was building work for which it should have been licensed: Dart Holdings Pty Ltd v Total Concept Group Pty Ltd[2012] QSC 158 at [39].
[8] The term "building work" is defined broadly by schedule 2 of the QBCC Act. Coast limited its argument to rely on that part of the definition, contained in paragraph (f), which provides that "building work" means "the preparation of plans or specifications for the performance of building work".[4] The definition of "building work" otherwise refers to "the erection or construction of a building" (paragraph (a)). A "building" is defined to include "any fixed structure". According to Coast's submissions, by entering the contract, Pico undertook to prepare plans or specifications for the performance of work involving the erection or construction of a fixed structure and, at the time of its undertaking, did not hold a relevant licence under the QBCC Act.
[9] A jurisdictional error may involve an erroneous denial of jurisdiction.[5] In Ingeteam Australia Pty Ltd v Susan River Solar Pty Limited,[6] Applegarth J relevantly observed:
[35] Finally, there is a maxim that where a document is reasonably open to more than one construction, the court should prefer a construction that will preserve the validity of the transaction rather than rendering it void or ineffective.[24] The maxim rests on the common sense presumption that the makers of a contract intended it to have effect but only applies where two constructions are open after the ordinary principles of construction have been applied. Hence, where two constructions are open, but one renders the contract unlawful, the construction which renders the contract lawful will be preferred.[25]
[36] The adjudicator ultimately found that Pico had "undertaken to carry out building work when it entered into the [c]ontract in circumstances where it did not hold the relevant class of licence permitting it to lawfully do so".[26] The adjudicator had earlier concluded that:[27]
[42] That the contract did not extend to the work the subject of the Installation Phase is consistent with the extrinsic facts known to both parties at the time of the contract. Relevantly, Coast had initially proposed that Pico would be engaged by a fixed price, definitive design and construct contract by which Pico would design, supply and install the themed elements of the Rivertown precinct for $5,000,000. That definitive design and construct contract was intended to include "construction methodology". The contract was for a sum of slightly in excess of $4,148,550 exclusive of GST. The objective contemplation of the parties was that the further work the subject of the Installation Phase would cost a further $1,260,950 exclusive of GST. It is reasonable to infer, and I find, that it was within the parties' objective contemplation at the time of the contract, that the further work the subject of the Installation Phase would need to be dealt with by a separate contract.
[43] On this application, the parties' submissions addressed the language contained in clause 10.2, namely that Pico "shall prepare the necessary documents to accompany the Works including installation instructions, operation and maintenance manuals and any spare parts as stipulated in the [c]ontract". The adjudicator did not refer to this clause in his decision. Coast submitted that the "installation instructions" was a reference to "the schematic design or the thematic designs, together with the issued for construction drawings".[36] Coast submitted that it was "a matter of construction" whether "those installation instructions ... encompass what was undertaken to be performed and the actual documents produced pursuant to this contract".[37] Pico submitted that the preparation of the "installation instructions" was an "ancillary obligation" to the "core obligation to supply the Works".[38] Pico's submission gains some support from the syntax of clause 10.2. Notably the "installation instructions" were to accompany "the Works", which suggests they did not form part of the "Goods" and "Services" which constituted the Works. According to Pico, "installation instructions" did not extend to plans or specifications for the performance of building work and the words had to be "understood in the context of the contract as a whole, ... the limited nature of this contract and the decision to separately deal with the installation works in a separate contract".[39] I note that the subcontract did not exist at the time of the contract, and it would be impermissible to have regard to its existence or terms in construing the contract.
[44] The contract was not a well-drawn document. Clause 1.1 referred to "the quotation in Exhibit A", when it was clear that the quotation was actually Exhibit C. The contract used imprecise language to the extent that the recitals referred to "the Works" as consisting of the "Goods" and "Services" as defined in the quotation when it was objectively clear that the Works only extended to Portion A of the quotation. Exhibit B, being the program, incorporated the Installation Phase which was not within the scope of the Works. Whilst in one part the contract noted that the Exhibits formed an "integral part of this Contract", in other parts the contractual language differentiated between the contract and the Exhibits and spoke in terms of "obligations under this Contract or the Exhibits hereto". Various clauses[40] of the contract referred to the "Project", without that term ever being defined. The "services", the value of which was nominated as $829,710 exclusive of GST, were not particularised with any precision.
[45] Against that background and the extrinsic facts, clause 10.2 then falls to be construed. The expression "installation instructions" is ambiguous. The word "instructions" might be interpreted to extend to plans or specifications but might rather refer to more limited, basic information. The adjudicator correctly acknowledged that by the contract Pico had undertaken to manufacture and supply components. It is apparent from Exhibit C that at least some of the themed elements were likely to be comprised of component parts.[41] The word "installation" might mean fixing components parts into place on site but, alternatively, might refer to arranging, assembling or placing component parts into position, without making the arrangement or assembly a fixed structure or part of a fixed structure to satisfy the definition of a "building" in the QBCC Act.
[46] Clause 10.2 is not to be read in isolation from other clauses contained in the contract. Clause 2.4 contemplated that the "Goods" once delivered to the site were to be thereafter installed and operated and that Coast would be responsible for the inspection, registration, licences, permits, approvals, certifications and all other fees necessary for installation and operation of the Works. It was objectively contemplated that the Part B "Installation Phase", the work involved in the installation of the Works which was not part of the contract, might involve inspections, permits, approvals and certifications for which Coast was responsible. Clause 3.1 provided that from the point of delivery of the Goods, the risk passed to Coast.
[47] Clause 3.8 was awkwardly worded. The language provided that all documents as well as intellectual property created, made, conceived or otherwise arising from the performance of the contract, referred to as "the Developments", provided "they" had been paid for by Coast, "are and remain" the exclusive property of Coast as of the date of "their" creation and were to be "used by" Pico "only for the purpose of performing its obligations under this [c]ontract". The clause appears to have been directed to documents and intellectual property paid for by Coast as at the time of the contract which might be used by Pico for the purpose of performing its obligations under the contract. That is, clause 3.8 seems to have been directed to documents and property paid for by Coast in relation to the development of the Rivertown precinct which Pico might need to have regard to or use for the purpose of performing the contract. Note 12 to the drawings which formed Exhibit A noted that, as at the time of the contract, documents and drawings, site survey and other information had been provided by Coast to Pico and were being used as background for all design development.
[48] Clause 4.1 noted that Pico "may make or has made" available to Coast information, including designs, drawing, specifications, manuals and procedures, which information was defined as "Confidential and/or Proprietary Information" and which Coast agreed to hold in confidence and not disclose without written consent. Coast was allowed to retain copies of that information "for use solely in the installation, testing, maintenance and operation of the Works" and might disclose that information to "its employees and contractors" on a "need to know basis" for purposes including "such installation". On the proper construction of the contract, the "necessary documents" contemplated by clause 10.2 being the installation instructions, along with operation and maintenance manuals, were documents intended to form part of Pico's "Confidential and/or Proprietary Information" as defined by clause 4.1.
[49] The classification of the installation instructions as part of Pico's "Confidential and/or Proprietary Information" is significant. Pico's "Confidential and/or Proprietary Information" was plainly not information intended to comprise plans or specifications for the performance of building work, which plans might reasonably have been required to be provided to third parties, other than Coast's contractors or employees, such as certifiers, financiers and tenderers. The contract contemplated that the work involved in the installation of the Works might involve inspections, permits, approvals and certifications. Properly construed, the "installation instructions" referenced in clause 10.2 meant instructions necessary to install, in the sense of arranging, assembling or placing the components parts into their proper position which instructions were part of Pico's "Confidential and/or Proprietary Information". The "installation instructions" did not extend to the preparation of plans or specifications for the performance of building work.
[50] The meaning given to "installation" in "installation instructions" in this local context of clause 10.2, read with clause 4.1, is a more limited meaning of "installation" than the installation apparently contemplated by the expression "Installation Phase" as used in Exhibit C or the installation referred to in clause 2.4 in respect of which there might be required "inspection, registration, licences, permits, approvals, certifications and other fees". The latter meaning of installation apparently contemplates installation involving construction work in fixing the Goods at the site or to structures at the site. That different local meaning is not unsurprising given the less than rigorous drafting evidenced by the contract. However, it is also warranted because of the significance of the installation instructions being properly classified as Pico's "Confidential and/or Proprietary Information".
[51] The different local meaning is further supported by other objective considerations. First, Pico had been engaged as a specialist fabricator of themed elements. The contract contemplated that Pico's services would end at the point of delivery of the Goods to site. At that point risk in the Goods passed to Coast. Pico had no contractual role beyond delivery of the Goods to site and had not been engaged under the contract because of any expertise in building or construction. Coast's submissions that the preparation, development and delivery of installation documents was "a core part of [Pico's] contracted performance" is not supported by the terms of the contract nor is it a commercial interpretation.[42] Second, the "installation instructions" referred to in clause 10.2 were to "accompany the Works". They were not part of the Works. As a matter of objective construction, in terms of "the Works", being the "Goods" and "Services" identified by the contract, no provision imposed an obligation on Pico to deliver approved plans or specifications suitable for construction work, being the erection or construction of a fixed structure on the site. Coast, not Pico, was responsible for obtaining approvals necessary for installation. There was no contractual provision, similar to the kind of provision in Australian Timber and Trusts Pty Ltd v T & M Buckley Pty Ltd,[43] which identified in terms that a document was to be used in construction work on the site. The only "construction" work contemplated by the contract as part of the Works was the work of manufacturing or fabricating the Goods which was to occur offsite.
[52] Coast attempted to look beyond the contract to events and acts which post-dated the contract as informing the proper construction of the contract. Coast submitted in terms that, as a matter of construction of the contract, it could look at drawings later produced by Pico as informing the proper construction of the contract. The underlying premise of that submission appears to have been that the manner of subsequent alleged performance of the contract by Pico could inform the proper construction of the contract. I reject that submission as being contrary to the general principle in Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 at [35]. The submission was also contrary to the relevant passages in Johnston v Brightstars Holding Company Pty Ltd,[44] the authority cited by Coast in support of its argument.
[53] Beyond that point of general principle, it was, in any event, contentious as to whether, as a matter of fact, drawings alleged to have been subsequently produced or provided by Pico, had been provided pursuant to and as part of the performance of the contract, the subcontract or otherwise. Notably, Coast placed reliance upon an affidavit of its senior project manager who attempted to give secondary evidence of the content of the contract by reference to a supposed "stage five" of performance "during the course of the contract" which involved "Issue for Construction ("IFC" drawings").[45] The stage five as described was a stage which was said to have followed concept design, schematic design, detailed design and fabrication design. The contract made no reference to any such stage five or to IFC drawings. Coast submitted that the subcontract, a later contract not in existence at the time of the contract nor mentioned in the contract provided "compelling reinforcement" of its proposed construction of the contract.[46] Coast developed that submission by reference to clauses of the subcontract which imposed obligations upon Pico in respect of "the latest issues of drawings and other Subcontractors' shop drawings". Ultimately, Coast invited the court to draw an "inference" that the shop drawings and other drawings referred to in the subcontract were the drawings produced by Pico in performing the contract.[47] I am not prepared to draw that inference as on the material before the court, the provenance of the drawings referred to in the subcontract is not sufficiently clear to warrant the drawing of such an inference.
[54] I find that on the proper construction of the contract, Pico did not undertake to perform building work by preparing plans or specifications for building work. The construction which I have preferred also preserves the validity of the contract rather than rendering it void or ineffective. The first ground on which the adjudicator reached his decision was affected by jurisdictional error.