Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd [2026] QSC 21

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - REMUNERATION - STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS - ADJUDICATION OF PAYMENT CLAIMS - where the applicant was the head contractor of a contract for the construction of a residential tower at Main Beach on the Gold Coast - where the first respondent was subcontracted by the applicant to perform components of the construction work - where the head contract and subcontract were terminated in September 2024 - where the first respondent issued a final payment claim in October 2024 seeking payment of $1,908,040.70 - where the first respondent lodged an adjudication application under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) - where the second respondent determined that the first respondent was entitled to be paid a sum that was greater than that sought by the parties - where the applicant obtained a declaration that the second respondent's decision was affected by jurisdictional error and was void - whether the court has power to order that the adjudication application be remitted to the adjudicator - whether, as a matter of discretion, an order for remittal ought to be made

Building and Construction Industry (Security of Payment) Act 2009 (ACT), s 43

Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 79, s 85, s 86, s 94, s 101

Judicial Review Act 1991 (Qld), s 47

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

BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2015] 1 Qd R 228

Builtcom Construction Pty Ltd v VSD Investments Pty Ltd atf The VSD Investments Trust [2025] NSWSC 250

Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 78 NSWLR 393

Civil Contractors (Aust) Pty Ltd v Galaxy Developments Pty Ltd & ors; Jones v Galaxy Developments Pty Ltd & ors [2021] QCA 10; (2021) 7 QR 34

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

Fulton Hogan Construction Pty Ltd v Brady Marine & Civil Pty Ltd [2015] ACTSC 384; (2015) 11 ACTLR 111

Hanson Construction Materials Pty Ltd v Decmil Australia Pty Ltd [2024] VSC 361

Heavy Plant Leasing Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2013] QCA 386

Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757

Ingeteam Australia Pty Ltd v Susan River Solar Pty Ltd [2024] QSC 30

INPEX Operations Australia Pty Ltd v JKC Australia LNG Pty Ltd & Anor (No 2) (2017) 322 FLR 436

Intero Hospitality Projects Pty Ltd v Empire Interior (Australia) Pty Ltd [2008] QCA 83

Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531

Maxcon Constructions Pty Ltd v Vadasz (No 2) (2017) 127 SASR 193

Maxcon Constructions Pty Ltd v Valdasz & Ors [2018] HCA 5; (2018) 264 CLR 46

Maxstra Constructions Pty Ltd v Gilbert [2013] VSC 243

Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd (No 2) (2010) 30 VR 141

Nathan v Minister for Home Affairs and Another [2022] HCA 26; (2022) 403 ALR 398

Pico Play Pty Ltd v Coast Entertainment Operations Limited [2025] QSC 227

Plaintiff S157/2022 v Commonwealth of Australia (2003) 211 CLR 476

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

Procon Developments (Australia) Pty Ltd v Hi-Cal Bricklaying [2025] QSC 67

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Richard Crookes Construction Pty Ltd v CES Projects (Aus) Pty Ltd (No 2) [2016] NSWSC 1229

Shape Australia Pty Ltd v The Nuance Group (Australia) Pty Ltd [2018] VSC 808

Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd [2016] HCA 52; (2016) 260 CLR 340

SSC Plenty Road v Construction Engineering (Aust) Pty Ltd [2015] VSC 680

Sun Engineering (Qld) Pty Ltd v Registrar (2023) 15 QR 395

Tackelly No 8 Pty Ltd v Reward Interiors Pty Ltd (t/as Reward Group [2025] NSWSC 300

Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd [2025] QSC 226

Total Lifestyle Windows Pty Ltd v Aniko Constructions Pty Ltd (No. 2) [2021] QSC 231

Total Lifestyle Windows Pty Ltd v Aniko Constructions Pty Ltd [2021] QSC 92

Undershaft (No 1) Ltd v Commissioner of Taxation [2009] FCA 41; (2009) 253 ALR 280

[1] On 11 September 2025, I declared that the second respondent's Adjudication Decision under the adjudication regime of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (the Act), was affected by jurisdictional error and void. This declaration was supported by my finding that the second respondent had calculated the adjudicated amount by reference to amounts paid rather than amounts certified, contrary to the submissions of both the applicant and the first respondent.[1]

[2] The application and the first respondent are unable to agree on the form of orders that follow from this finding. The first respondent seeks an order remitting the Adjudication Application (which underpinned the Adjudication Decision) to the second respondent, to be determined according to law under s 79 of the Act. The applicant disputes the existence of any power to remit because the time limits for the determination of the Adjudication Application under the Act have now expired and otherwise submits that if such a power exists, it should not be exercised for discretionary reasons.

[3] The resolution of this impasse and the determination of the appropriate orders to be made in this case turns on a proper construction of the statutory regime under the Act including the reasons and consequences of the Adjudicator's Decision having been declared void.

Purpose of the strict timeframes imposed by the Act

[4] The purpose and process of the adjudication scheme under the Act is discussed in my earlier reasons for judgment.[2] It is instructive to recall that the underlying purpose of the Act is to assist those in the building and construction industry to get paid quickly for the work they do; and that to facilitate this, the scheme provides a type of "rough justice" where payment disputes are determined informally, summarily and quickly within the confines of "carefully calibrated" time stipulations to ensure commercial certainty.[3]

[5] There is no suggestion that the strict timelines imposed by the Act were not met by the applicant and the first respondent leading up to the second respondent making his decision.

[6] Nor is there any suggestion that the second respondent failed to comply with the time stipulations imposed upon him under ss 85 and 86 of the Act. These sections state as follows:[4]

(1) Subject to section 86, an adjudicator must decide an adjudication application no later than -

(a) for a standard payment claim - 10 business days after the response date; or

(b) for a complex payment claim - 15 business days after the response date.

(a) if the adjudicator is given an adjudication response under section 83 - the day on which the adjudicator receives the response; or

(b) if the respondent is prevented from giving the adjudicator an adjudication response under section 82(2) - the last day on which the respondent could have given the adjudicator an adjudication response under section 83 had it not been prevented from doing so under section 82(2); or

(c) otherwise - the last day on which the respondent could give the adjudicator an adjudication response under section 83.

(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.

86 Extending time for deciding adjudication application

(1) The claimant and respondent for an adjudication application may, before or after the end of the maximum period for deciding the application under section 85(1), agree in writing that the adjudicator has additional time to decide the application.

(2) Despite section 85(1), an adjudicator may decide an adjudication application within a longer period if -

(a) the claimant and respondent have informed the adjudicator that they have agreed under subsection (1) that the adjudicator has additional time to decide the application; or

(b) the application relates to a complex payment claim and, in the opinion of the adjudicator, the claimant and respondent have failed to reach an agreement mentioned in subsection (1).

(a) if subsection (2)(a) applies - the additional time agreed to by the claimant and respondent under subsection (1); or

(b) if subsection (2)(b) applies - 5 business days after the time the adjudicator would otherwise have to decide the application under section 85(1).

(4) If the adjudicator has additional time to decide an adjudication application under this section, the adjudicator must notify the registrar of the additional time to decide the application within 4 business days after -

(a) if subsection (2)(a) applies - the day the claimant and respondent agreed under subsection (1); or

(b) if subsection (2)(b) applies - the day the adjudicator decided he or she had additional time under subsection (2)(b)."[5]

[7] It is clear on a plain reading of these sections that an adjudicator must not decide an adjudication application beyond the time limit expressed in s 85(1), unless either of the circumstances in s 86(2) are established. In this case, the parties agreed to two extensions of time for the second respondent to decide the Adjudication Application, so that by operation of ss 86 (1) and (3)(a), the time for the second respondent to decide the Adjudication Application was extended until 15 April 2025. This time frame was met by the second respondent delivering his Adjudication Decision on

[8] There is no express power to review an adjudication decision under the Act. Although s 101, (set out in paragraph [43] of these Reasons) plainly contemplates court intervention. It is otherwise well established that an adjudicator's decision can be reviewed for jurisdictional error and this Court can grant declaratory relief based on the invalidity of the decision.[7] A decision made in the context of a material denial of procedural fairness is invalid and must be set aside.[8] Materiality is shown by the existence of a realistic possibility that the decision could have been different had procedural fairness been observed.[9] This relief has been described as in the nature of the prerogative writ of certiorari.[10]

[9] Ordinarily the consequence of finding jurisdictional error is that the decision is "no decision at all."[11] Although this depends on whether the statutory provisions under which the decision is made require a contrary conclusion.[12] As Kelly J relevantly observed in Sun Engineering (Qld) Pty Ltd v Registrar (2023) 15 QR 395, (in the context of the current Act), "an adjudication determination is to be treated as having factual consequences for the purpose of the Act even though it may be affected by jurisdictional error."[13]

[10] The usual form of relief when certiorari is granted is to remit back to the original tribunal to be determined in accordance with law.[14] Such an order for remitter is like the prerogative writ of procedendo.[15] The applicant initially submitted that an order for remittal is not one that follows from the granting of declaratory or injunctive relief and pointed to the fact that no such order had been requested by the first respondent in the first instance and so was therefore not available.[16] But the first respondent's counsel made an oral application for an order for remittal and consequently, and sensibly, that point was not further advanced by senior counsel for the applicant.[17]

[11] Whether the Adjudication Application can or "should" be remitted depends on the proper construction of the statute.[18] The applicant emphasised the "conceptual difficulty" in making a remittal order under the Act because it would require the second respondent to decide the Adjudication Application outside of the time permitted by s 85(1).[19] The applicant garnered support for this submission from the Court of Appeal's consensus in Civil Contractors (Aust) Pty Ltd v Galaxy Developments Pty Ltd & Ors; Jones v Galaxy Developments Pty Ltd & Ors [2021] QCA 10; (2021) 7 QR 34 that the time stipulation in ss 85 and 86 of the Act is a jurisdictional and not a procedural requirement, so that an adjudicator's decision given out of time is of no effect.[20]

[12] The Act does not provide an express power to the Court to extend the time for an adjudicator to decide an adjudication application.[21] But the power to remit under similar (but not always identical) legislation has been considered in various ways and by a range of single judge and intermediate appellate court decisions in various jurisdictions.

[13] In Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd (No 2) (2010) 30 VR 141, Vickery J found that there had been a substantial denial of procedural fairness in an adjudication decision and made an order for remittal on the basis that it was the more conventional and appropriate course and the "ordinary remedy" that followed the writ of certiorari.[22] Later in Maxstra Constructions Pty Ltd v Gilbert & Ors [2013] VSC 243, Vickery J also ordered remittal as the usual form of relief and recognised and addressed issues with time limits as follows:[23]

"Although some elements of timing found in the provisions of the Act would tend to suggest that the remedy of remitting a matter back to the original tribunal for determination would not be open as a matter of implication, in my opinion, no such implication can arise."

[14] In Intero Hospitality Projects Pty Ltd v Construction Engineering (Australia) Pty Ltd [2008] QCA 83, the Queensland Court of Appeal assumed that remittal was available under the predecessor to the Act, the Building and Construction Industry Payments Act 2004 (Qld).[24]

[15] In Maxcon Constructions Pty Ltd v Vadasz (No 2) (2017) 127 SASR 193, Blue J (Lovell J agreeing) decided that an adjudication decision was not affected by jurisdictional error so that the question of remittal did not need to be decided. But relevantly, by way of obiter, he considered that remittal would have been appropriate in the circumstances of that case and made the following observations (in the context of judicial review of administrative decisions):[25]

"Even in the case of jurisdictional error, when the ultimate decision is void, a court will usually exercise its discretion to remit the matter to the decision-maker to make a decision according to law. If it is the ultimate decision that is affected by jurisdictional error, there does not necessarily need to be any further hearing: it may be sufficient that the decision-maker decides the matter on the existing materials and submissions."

[16] The applicant pointed to the decisions of Intero and Maxcon as having identified the conceptual difficulties for the availability of remitter.[26] I accept that is correct, but not in the sense agitated by the applicant. Both decisions focused on the discretionary reasons why the court might, in certain circumstances decline remitter. In other words, that the availability of remitter may not always be appropriate depending on the facts. But that is a different issue to whether there is a power to remit. Both decisions clearly assume the availability of the power of remittal. Although as with both Aniko decisions (discussed below) they do not address the logistics of overcoming the relevant time stipulations under the applicable legislation.

[17] In Hanson Construction Materials Pty Ltd v Decmil Australia Pty Ltd [2024] VSC 361, Stynes J quashed part of an adjudication determination and remitted the application to the adjudicator.[27] Her Honour noted an apparent difference in approach between courts in Victoria and New South Wales on the issue of remittal.[28] This difference can be attributed to the Building and Construction Industry Security of Payment Act 2002 (Vic) enabling adjudication decisions to be declared partially void under s 23B. The purpose of this section (as elucidated in the Second Reading Speech to the Building and Construction Industry Security of Payment (Amendment) Act 2006 (Vic)) is to enable prompt recovery of progress payments, and so parts of an adjudication determination which remain "within power can be saved".[29]

[18] In Fulton Hogan Construction Pty Ltd v Brady Marine & Civil Pty Ltd [2015] ACTSC 384; (2015) 11 ACTLR 111, Mossop AsJ made an order for remittal given the "cost and time efficiencies in having the original decision-maker reconsider the claim" and permitted a short extension of time for the new decision to be made.[30] In terms of the extension, the adjudicator was directed to make the new decision "within 15 business days after the date of these orders", which is beyond the usual 10 business days to make a decision once remittal has been ordered (as expressly contemplated by the ACT legislation).[31]

[19] In Shape Australia Pty Ltd v The Nuance Group (Australia) Pty Ltd [2018] VSC 808, Digby J declined to determine the availability of remittal for adjudication determinations under the Victorian legislation, but considered that even if there was power to remit, his Honour would refuse to do so for discretionary reasons including the parties inability to comply with the timing under the relevant Act and the remittal being contrary to the purpose and intent of the Act to enable contemporary interim relief within prescribed time limits.[32] These observations were made with the express qualification that "nothing herein should be taken as conveying any view as to the Court's power to order that remedy and process" under the relevant Act.[33]

[20] In Duro Felguera Australia Pty Ltd v Samsung C&T Corporation [2018] WASCA 28; (2018) 52 WAR 323, Martin CJ observed that neither party had invited the trial judge to remit the matter "and there may well be issues as to the extent to which that course was available, given the provisions of the [relevant Act] relating to the time within which adjudicators must perform their functions."[34] These observations were made by way of obiter and in the context of the now repleaded Construction Contracts Act 2004 (WA), which was materially different in a number of respects to the Act presently under consideration. It follows that little assistance can be gained from this case.

[21] In Heavy Plant Leasing Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2013] QCA 386, Muir JA (Gotterson and Morrison JJA agreeing) noted the "obvious difficulties in the way of a remittal" particularly because of the (former) legislation's aim to provide an expeditious, simple and cheap means of obtaining progress payments.[35] In doing so, Muir JA relevantly stated further:[36]

"In the absence of more comprehensive argument on this Court's power to remit an adjudication to an adjudicator in the circumstances under consideration, I prefer to base my decision on discretionary grounds. In my view, the following matters tell against the remittal sought by the appellant. The provision of such a remedy would be contrary to the quick, cheap and simple processes envisaged by the Act. Moreover, as Macfarlan JA pointed out in Cardinal Project Services Pty Ltd v Hanave Pty Ltd, by the time the adjudicator decided the matter after remittal, circumstances may have changed significantly from the time when the adjudicator was considering his original determination. The payment schedule may be outdated. Other defects may have come to light. The removal of adjudicator's decisions under the Act from the scope of Judicial Review is a further indication of a legislative desire that the Act's mechanisms be quick, cheap and simple. Also any remittal order would necessarily require the adjudicator to make a decision outside the time permitted by s 25(3) unless the parties agreed to an extension of time."

[22] In Richard Crookes Construction Pty Ltd v CES Projects (Aus) Pty Ltd (No 2) [2016] NSWSC 1229, McDougall J made orders declaring an adjudication determination void and restraining a subcontractor from seeking to enforce it, but determined that the question of remittal did not arise because there was no cross claim for such an order to be made.[37] His Honour considered that because of the relief being declaratory and injunctive, there was no need for an order of certiorari, and accordingly no need to consider whether there was power or point to make a remitting order because the outcome is determined by the quashing of the order.[38]

[23] Similar observations were made by Kelly J in the context of the Northern Territory legislation in INPEX Operations Australia Pty Ltd v JKC Australia LNG Pty Ltd & Anor (No 2) (2017) 322 FLR 436, namely that "[a]n order in the nature of mandamus ... can hardly be said to be consequential upon an order in the nature of certiorari".[39]

[24] In contrast, Peden J in Tackelly No 8 Pty Ltd v Reward Interiors Pty Ltd (t/as Reward Group [2025] NSWSC 300 found that mandamus was available but declined to order it on discretionary grounds. Her Honour found that granting such relief would prolong the adjudication process:[40]

"...when that process has been set up to ensure a swift, although rough and ready, system for the interim determination of rights to payment under a construction contract".

[25] Likewise, in Builtcom Construction Pty Ltd v VSD Investments Pty Ltd atf The VSD Investments Trust [2025] NSWSC 250, Peden J found that there was no jurisdictional error, but that if there was, her Honour would "likely" have refused to make such a discretionary order because a 'more convenient and satisfactory remedy exists'...in the form of final relief following the exercise if the parties' common law rights.[41]

[26] Peden J made similar findings in Tackelly, concluding that final relief is even more preferable "in circumstances where the underlying contract is at an end."[42]

[27] In Richard Crookes Constructions McDougall J appeared to recognise a power to remit qualified by the following observations:[43]

"Whether the matter should be remitted to the Adjudicator depends on among other things, on the time limit in s 21(3)[44] of the Security of Payment Act. On the proper construction of the statute, is that limit an essential preliminary to, or only a procedural condition of, the exercise of a statutory power or authority?" [45]

[28] The applicant submits that Galaxy confirmed that the time limits under the Act are an "essential preliminary" rather than a "procedural condition" of the exercise of an adjudicator's power, and that therefore, remittal is not available in this case.[46]

[29] In support of its submission that there is no power to remit, the applicant referred to the observations of Kelly J in INPEX that there were "conceptual difficulties"[47] in making an order for remittal when the time for making the decision had passed due to "...the objectives of the Act to provide for the rapid resolution of payment disputes....and the tight, fairly inflexible time frames...in the Act to put this objective into effect."[48]

[30] In INPEX, Kelly J also relevantly observed as follows:[49]

"It would be obviously inappropriate for the Court to order the Adjudicator to make a determination under s 33(1)(b) if the Act precludes him from doing so. In my view, the Act does preclude an adjudicator from making a determination after the time limit has expired because s 33(2) deems him to have already made a decision dismissing the application on the expiration of that fixed time."

[31] The emphasised portion above reveals an important distinction between the Northern Territory legislation and the Act. The Construction Contracts (Security of Payments) Act 2004 (NT) contains a provision under which, if an adjudication application is not dismissed or determined within the prescribed time, the application is taken to have been dismissed.[50] In contrast, where an adjudicator does not decide an adjudication application within the prescribed period under s 85 of the Act, s 95(2) provides a process which allows the claimant to request (within 5 business days) the registrar to refer the original application to another adjudicator, or to make a new adjudication application. It follows that the obstacles recognised by Kelly J in making an order for remittal in INPEX are not the same in the present case and little assistance can be gained from this decision. Although the objectives of both the Northern Territory Act and the Queensland Act are similar and those objectives are relevant in this case to the exercise of the discretion to remit.

[32] The availability of remitter has been confirmed by this Court on three occasions in more recent times. The first two occasions concerned the same parties.

[33] In Total Lifestyle Windows Pty Ltd v Aniko Constructions Pty Ltd [2021] QSC 92, Martin J (as his Honour then was), found that certain parts of the adjudicator's decision were affected by jurisdictional error and therefore void; and, consequently, he ordered the initial adjudication application be remitted to the adjudicator to be decided according to law. Martin J did not develop any reasons for this form of order, but it is implicit from the judgment that he was satisfied he had the power to remit; and that the remittal concerned only those parts of the adjudicated application that related to the part of the decision declared void.

[34] Subsequently, in Total Lifestyle Windows Pty Ltd v Aniko Constructions Pty Ltd (No. 2) [2021] QSC 231, Freeburn J was satisfied that the Court had "...an inherent and discretionary power to remit the proceeding back to the adjudicator".[51] In reaching this conclusion Freeburn J:

(a) referred to Muir JA's assumption in Intero Hospitality Projects Pty Ltd v Empire Interior (Australia) Pty Ltd [2008] QCA 83 at [54] that the court was entitled to remit a proceeding to another adjudicator;

(b) followed a series of decisions in Victoria including where it was held that a power of remittal was available;[52]

(c) drew a distinction between "a confined, identifiable error" and a lack of jurisdiction on the part of an adjudicator;[53] and

(d) cited with approval the observations of Kelly J (in the Northern Territory Supreme Court) in INPEX Operations Australia Pty Ltd v JKC Australia LNG Pty Ltd & Anor (No 2) (2017) 322 FLR 436 that where the error is so confined, "it is appropriate to identify the error and then remit the matter to be dealt with in a way that corrects that specific error".[54] As opposed to a situation where the adjudicator lacked jurisdiction to deal with the matter in the first place, in which case it is appropriate to determine that the matter should not be remitted back to adjudication.[55] That former reasoning appears apposite in the present case, where, as the first respondent submits, the error in question was a mere calculation error which can be corrected relatively inexpensively and expeditiously.

[35] These two Queensland decisions under the Act address the power to remit and not the impact of time restrictions under the Act following an order for remittal. But the third and most recent decision of this Court on the issue of remittal grapples directly with and determines this very issue.

[36] In Procon Developments (Australia) Pty Ltd v Hi-Cal Bricklaying [2025] QSC 67, Chief Justice Bowskill set aside an adjudicator's decision that had been made unlawfully for failure to observe the rules of procedural fairness. Despite a submission that remittal was "problematic" because of the strict time limits that apply under the Act, the following observations reveal that the Chief Justice found no conceptual difficulty with the Court's power to order remittal and accommodate the time provisions in the Act:[56]

"I am satisfied that the Court does have power to remit the adjudication application to be considered, according to law, under the BIF Act. That is the usual order, where a decision is set aside by the making of an order in the nature of certiorari (that is, an order setting aside a decision that has been made unlawfully - for failure to observe the rules of procedural fairness).

The time provisions under the BIF Act can be accommodated by an order that the application be remitted to the Registrar, to be dealt with in accordance with s 79(4), as though the application were received on the date the Registrar is notified of the order. All subsequent time frames would be calculated by reference to that date."

[37] Relevantly, the Chief Justice was satisfied that "[a]n order of this kind" [highlighted in the preceding passage] could be made, under s 101(3)(b) of the Act, which permits the court to make "any other order it considers appropriate".[57] The order for remittal ultimately made in Procon was as follows:

1. The adjudication application...lodged on 13 September 2024 by... is remitted to the Adjudication Registrar, to be referred to an adjudicator (not being the adjudicator who made the first decision) for a decision according to law, pursuant to s 79 of the BIF Act.
2. For the purpose of calculating the time in which steps are required to be taken in relation to the adjudication application, the date the application is made (for the purposes of the step required by s.79(4)) is taken to be the date of this order, and the date the application is received by the Registrar (for the purpose of s 79(5)) is the date the Registrar receives a copy of this order."

[38] The applicant submits that the decision in Procon is "clearly wrong"[58] and should not be followed on three bases:

(a) First: the order was made without reference to the Court of Appeal's finding in Galaxy and failed to consider that the relevant time provisions under the Act were jurisdictional rather than procedural requirements;

(b) Second: the non-specific statutory language relied on in s 101(3)(b) of "any other orders it considers appropriate" does not confer on the Court a specific power to modify the jurisdictional time requirements in sections 85 and 86; and

(c) Third: the order to remit is not supported by a number of first instance and intermediate appellate authorities.

[39] It is convenient to address the third issue first as it can be dealt with briefly. The above analysis of the cases reveals that there is no relevant decision of any intermediate appellate court which is authority for the proposition that the power to remit does not exist; nor is there any decision of a judge at first instance considering the Act or a similar legislation which unequivocally establishes that the power to remit does not exist.[59]

[40] The other two bases are addressed in turn below.

Failure to consider the Galaxy decision and the jurisdictional requirements of the time stipulations under the Act

[41] I accept that the decision of Procon does not cite the case of Galaxy. But the applicant's reliance on Galaxy overlooks that in that case, the Court of Appeal was faced with a different issue to that in Procon and indeed, the present case. In Galaxy the court determined that an adjudication decision made outside the time limits under the Act is invalid. In the present case, the Adjudication Decision was made within time but was subsequently found to be invalid for reasons not connected to the jurisdictional time stipulations under the Act. This is an important distinction because the scope or operation of s 101(3)(b) did not arise for the Court's consideration in Galaxy as it does in this case.

[42] I otherwise do not accept that it is correct to say that in Procon the Chief Justice was not cognisant of the jurisdictional requirements of the time stipulations under the Act. As the following passage from that case reveals, the Chief Justice plainly considered it relevant that there had been jurisdiction to deal with the adjudication application in the first place (bearing in mind the time frames under the Act):[60]

"It is appropriate in the circumstances to remit the matter to the Adjudication Registrar, to enable a decision to be made on the application according to law. That is in circumstances where, objectively, I find there was jurisdiction to deal with the adjudication application (because there was a valid reference date, 2 July 2024, for the outstanding payment claim, issued on 14 August 2024), the only reason for the decision being set aside is an error made by the adjudicator as a result of a failure to observe the rules of procedural fairness, and the effect of setting aside the adjudicator's decision is that there has been no decision at all - which means the application has not been dealt with."

[43] Section 101 of the Act relevantly provides as follows:

(2) Nothing done under or for this chapter affects any civil proceedings arising under a construction contract, whether under this chapter or otherwise, except as provided by subsection (3).

(3) In any proceedings before a court or tribunal in relation to any matter arising under a construction contract, the court or tribunal -

(a) must allow for any amount paid to a party to the contract under or for this chapter in any order or award it makes in those proceedings; and

(b) may make the orders it considers appropriate for the restitution of any amount so paid, and any other orders it considers appropriate, having regard to its decision in the proceedings.

(4) If, in any proceedings before a court in relation to any matter arising under a construction contract, the court finds that only a part of an adjudicator's decision under this chapter is affected by jurisdictional error, the court may -

(b) allow the part of the decision not affected by the error to remain binding on the parties to the proceeding"[61]

[44] Read together, ss 101(3) and (4) plainly contemplate a review of an adjudicator's decision by the court and a finding of jurisdictional error. Section 101(4) "...merely facilitates the continuing effect of parts of an adjudication decision not affected by jurisdictional error" but is of no assistance on the issue of the power of remittal.[62]

[45] The applicant submitted that the Court ought not conclude from non-specific language, such as the words "any other orders it considers appropriate" used in section 101(3)(b), that Parliament intended to confer on the Court a power to modify the mandatory and jurisdictional time requirements in sections 85 and 86 of the Act through the use of legal fictions.[63]

[46] But this submission overlooks that the time limits in the Act are concerned with the adjudication process and not with a court determination if an adjudication decision made within those time constraints is declared invalid. That is where s 101 has some work to do. I am satisfied that s 101 is plainly a remedial and plenary section which "should not be unduly read down."[64] Support for this finding is found in the observations of Kelly J in Pico Play Pty Ltd v Coast Entertainment Operations Limited [2025] QSC 227, that s 101(4):[65]

"...is required to be construed beneficially to ensure that the mischief to which the section is directed is remedied. 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. The section operates in the context of the exercise of the court's supervisory jurisdiction to review for jurisdictional error."

[47] It is also instructive that the power to make orders under s 101(3)(b) is not one without some limitation. Rather, the power is expressly or specifically qualified by the phrase "having regard to its decision in the proceedings". It follows that I accept the applicant's submission that on a plain reading of the section there must be a logical nexus between the decision in a proceeding and the orders to be made - that is, the expression "any other orders" must be construed as being consequential upon the decision made in the proceeding. But I do not accept that the power is aptly described as "non-specific".[66]

[48] The applicant submits that there is no nexus between an adjudication decision being declared void because it is affected by jurisdictional error, and a consequential order being made which has the effect of modifying the mandatory and jurisdictional time requirements in ss 85 and 86 of the Act. But I do not accept that s 101(3)(b) of the Act ought to be construed so narrowly. Rather, I am satisfied that there is plainly a logical nexus because the order for remittal only arises because the Court has declared the Adjudication Decision void.

[49] The supervisory jurisdiction of this Court over decisions affected by jurisdictional error, including the issue of prerogative relief, is one of its defining characteristics which cannot be ousted by statute.[67] Further, judicial comity dictates that earlier authorities ought to be followed unless the court forms the view that they are clearly or plainly wrong.[68] In the context of statutory interpretation, this view is not one to be taken lightly.[69]

[50] I am satisfied that this Court has the power to make an order for remittal when an adjudicator's decision has been declared void for jurisdictional error, for the following four reasons:

(a) First: whilst the availability of remittal following the issue of declaratory relief has been questioned by some judges in obiter dicta, I am not satisfied that those comments are sufficient to overthrow the line of authority (discussed above) in which remittal was either assumed to be, or ruled to be, available as an aspect of the court's inherent supervisory jurisdiction. Further, the authorities relied upon by the applicant in this regard often discussed the difficulties associated with ordering remittal in terms of the discretion of whether to do so, rather than the very existence of the power itself;

(b) Second: whilst the language of ss 85, 86 and 94 of the Act impose precise time stipulations, I am not satisfied that Parliament intended that these stipulations be interpreted as ousting an aspect of the court's inherent supervisory jurisdiction to remit a decision to the original decision-maker to determine according to law;

(c) Third: whilst I accept that any order for remittal needs to accommodate the time stipulations under the Act to avoid the Adjudicator's Decision being made out of time, and therefore being invalid, I am satisfied that the express and specific power under s 101(3)(b) of the Act for the court to make "any other orders it considers appropriate, having regard to its decision in the proceedings"[70] is one that allows for a remittal order to be made which accommodates the time stipulations under the Act; and

(d) Fourth: in a case where an adjudication decision was made in time under the Act but later declared void for jurisdictional error (after the time limits under the Act have already expired), there is a clear nexus between the Court's decision and the making of an order in respect of those time limits.

[51] It follows from the above reasoning, that I do not accept the applicant's submission that the use of s 101(3)(b) in Procon to accommodate the timeframes under the Act in making an order for remittal was clearly or plainly wrong.

Exercise of the Discretion: should remittal be ordered in this case?

[52] I accept that one of the factors relevant to the exercise of this Court's discretion whether to make an order for remittal is whether final relief is a more convenient and satisfactory remedy. The applicant submits that the role of the Act is spent when the contract has been terminated (as it has been in this case) and therefore it is "time for the parties to finally determine their rights."[71] I do not accept this submission. Rather, I am satisfied that this is a case where disputes over final amounts should be decided separately from a dispute about the present interim entitlement.[72]

[53] First, it is reasonable to infer, as I do, given the notoriety of the various disputes ventilated in the courts by the present parties, that any further litigation of the parties' rights and responsibilities will be a hotly contested and lengthy process. Waiting for final relief may be a more convenient and satisfactory remedy for the applicant, but it will not be for the first respondent.

[54] Second, an order for remittal would serve a clear and useful purpose that is, the provision of a payment that the first respondent was and is currently entitled to.

[55] In further opposing any order for remittal, the applicant relies on the "two-decision problem" which arose in the facts of Sun Engineering.[73] In that case, Kelly J determined that once the adjudication decision was set aside for jurisdictional error, commercial certainty would be undermined by ruling that s 94 was enlivened, for the following reasons:[74]

"...it would introduce elements of conjecture about the claimant's entitlement to act under subsection 94(2) in a broad range of circumstances involving alleged jurisdictional error. It also countenances the prospect of multiple adjudicators providing adjudications about the one adjudication application."

[56] It is difficult to see what practical problems the existence of two decisions would pose on the facts of this case. The parties agree that, given the nature of the error, severance is not appropriate; nor are they seeking another adjudicator to determine the application or to make a new application under s 94. In this case, all that the first respondent seeks is the remittal of the original adjudication application to the adjudicator to correct an error in calculation. This can be done on the existing material. I am not therefore satisfied that the exercise of the discretion to make an order for remittal on the facts of this case will undermine commercial certainty.

Is an order for remittal consistent with the objectives of the Act

[57] There are competing statutory objectives to be balanced in exercising the discretion of whether to remit the Adjudication Application to the second respondent. On the one hand, the Act mandates that adjudication provide a speedy, inexpensive resolution, and that is hardly achieved by remittal given the contract was terminated now more than a year ago. But, on the other hand, the purpose of the Act is to ensure contractors are paid what they are entitled to, and quickly. In this case, if the second respondent had taken the course advanced by both parties in their submissions on the Adjudication Application, an adjudicated amount in favour of the first respondent of over $1,000,000 would have resulted.

[58] Overall, I am satisfied that an order for remittal is appropriate in the exercise of my discretion in the circumstances of this case. An order for remittal will allow the second respondent to correct a specific error by simply recalculating the total amounts certified rather than paid. This can be done "readily and inexpensively".[75] Such an order is consistent with the objects of the Act to enable contractors to recover progress payments for construction work and to ensure cash flow for subcontractors.[76]

[59] It follows from the above analysis that remittal is available as an aspect of the court's inherent supervisory jurisdiction over decisions affected by jurisdictional error under the Act; and that it ought to be ordered in this case.

(a) The Adjudication Application numbered 2761515 be remitted to the second respondent to make a decision according to law pursuant to s 79 of the Building Industry Fairness (Security of Payment) Act 2017 (Qld);

(b) The time for the second respondent to decide the Adjudication Application under s 85 of the Act be taken to commence on the date on which the second respondent is given notice of this order; and

(c) The applicant is to pay the first respondent's costs of the proceeding after

11 September 2025.[77]

[1] Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd [2025] QSC 226 at [20]- [26].

[3] Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at 18 [44] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) at 17, [40]; see also Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 78 NSWLR 393 at 406 [47] (referred to by the plurality of Probuild at footnote 63).

[4] See further Civil Contractors (Aust) Pty Ltd v Galaxy Developments Pty Ltd & ors; Jones v Galaxy Developments Pty Ltd & ors [2021] QCA 10; (2021) 7 QR 34 at [28] (McMurdo JA, Fraser JA and Jackson J agreeing).

[5] These provisions incorporate aspects of s 25A of the predecessor to the Act, the Building and Construction Industry Payments Act 2004 (Qld).

[6] Had that time frame not been met, s 94 of the Act provides for a claimant to request another adjudicator, or make a new adjudication application where the adjudicator does not decide the application within the period prescribed by s 85 or as varied by s 86.

[7] Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd [2020] QSC 133; [2020] 4 QR 410 at [22],

[23] and [35] (Bond J, as his Honour then was).

[8] Procon Developments (Australia) Pty Ltd v Hi-Cal Bricklaying [2025] QSC 67 at [40] (Bowskill CJ) with reference (at [37]) to Ingeteam Australia Pty Ltd v Susan River Solar Pty Ltd [2024] QSC 30 at [76]- [80] and the authorities there referred to.

[9] Ibid Ingeteam with reference (at [79]-[80]) to Nathan v Minister for Home Affairs and Another [2022] HCA 26; (2022) 403 ALR 398 at [45]- [46] (Gageler J, as the Chief Justice then was).

[10] Procon at [43] (Bowskill CJ); Maxstra Constructions Pty Ltd v Gilbert [2013] VSC 243 at [72] and [73].

[11] BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2015] 1 Qd R 228, 260 at [66]; Plaintiff S157/2022 v Commonwealth of Australia (2003) 211 CLR 476 at [76].

[13] At [20] to [22]. cf Heavy Plant Leasing Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2013] QCA 386 at [65] per Muir JA (Gotterson and Morrison JJA agreeing), this decision was however decided in the context of the former version of the Act; and the court preferred to base its decision about remittal on discretionary grounds in the absence of more comprehensive argument on the power to remit an adjudication in the circumstances of that case [at 67].

[15] Richard Crookes Construction Pty Ltd v CES Projects (Aus) Pty Ltd (No 2) [2016] NSWSC 1229 at [74].

[16] Ibid at [58], relying on the obiter comments of McDougall J.

[18] Richard Crookes Construction at [80] to [81], McDougall J used the expression "should" not "can". In that case, the relevant statute was the Building and Construction Industry Security of Payment Act 1999 (NSW).

[19] Applicant's outline of submissions: remittal question at paragraph [28].

[20] At [28]-[47] per McMurdo JA (Fraser JA and Jackson J agreeing).

[21] The same can be said of the interstate legislation, except for the Building and Construction Industry (Security of Payment) Act 2009 (ACT) s 43(6)-(7).

[24] At [54] (Muir JA, Holmes and Chesterman JJA agreeing).

[25] At 256 [219]-[221]. Hinton J in dissent [at [297] would have ruled there was jurisdictional error and considered it followed that there would be no need for an order remitting because the adjudicator had no office once a determination had been made. This decision was upheld in the High Court, which did not address the question of remittal: see Maxcon Constructions Pty Ltd v Valdasz & Ors [2018] HCA 5; (2018) 264 CLR 46.

[26] Intero at [54] and Maxcon at [73], with reference to the dissenting judgment of Hinton J.

[27] At [74], with reference to Vickery J in Metacorp and Maxstra.

[29] Hanson at [65] (Stynes J), quoting Victoria, Parliamentary Debates, Legislative Assembly, 9 February 2006, 219 (Rob Hulls, Minister for Planning).

[30] At [67] and [69] (Mossap AsJ).

[31] Ibid at [72(4)] (Mossop AsJ), see also Building and Construction Industry (Security of Payment) Act 2009 (ACT), s 43(7).

[36] Ibid at [67] (Gotterson and Morrison JJA agreeing).

[37] See paragraph 10 of these Reasons; and Richard Crookes Constructions at [58] (McDougall J).

[38] Ibid Richard Crookes Constructions at [58] and [73] (McDougall J).

[40] At [122] (Peden J), quoting McDougall J in Richard Crookes Constructions at [96]-[100].

[43] Richard Crooks Constructions at [80], citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 389-390 [92] (McHugh, Gummow, Kirby and Hayne JJ), 373-4 [37]-[39] (Brennan CJ, dissenting).

[44] This provision provides strict time frames for the provision of adjudication responses.

[45] These observations were made obiter dictum; although they have been cited in subsequent cases see, eg, Shape Australia at [104] (Digby J); Duro at 343 [79] (Martin CJ).

[46] Applicant's outline of submissions: remittal question at paragraph [40(c)].

[47] Applicant's outline of submissions: remittal question at paragraph [36(b)].

[50] See further INPEX at 438-9 [8]-[9] (Kelly J); Construction Contracts (Security of Payments) Act 2004 (NT) s 33(2).

[52] Maxstra at [72]; SSC Plenty Road v Construction Engineering (Aust) Pty Ltd [2015] VSC 680.

[53] Aniko (No. 2) at [119] (Freeburn J).

[54] Ibid at [119] (Freeburn J) citing INPEX at 439 [14] (Kelly J).

[55] Ibid at [119] (Freeburn J) citing Richard Crookes Construction Pty Ltd at [73] (McDougall J).

[56] Procon at [42]-[44] (Bowskill CJ); citing Freeburn J's observations in Aniko (No. 2) at [113] with reference to the power to order remittal; and s 101(3)(b) of the Act as the source of the power to accommodate the time frames under the Act.

[58] Applicant's outline of submissions: remittal question at paragraph [7].

[59] Cf INPEX see paragraph [30] and [31] of these Reasons.

[61] I note that the parties agree that severance, as permitted by s 101(4), is not open in the circumstances of this case.

[62] As Freeburn J also observed in Aniko (No. 2) at [114]-[115].

[63] Applicant's outline of submissions: remittal question at paragraph [74].

[64] First respondent's outline of submissions on remitter filed 23 October 2025 (CFI 22) at [24].

[65] At [63], citing Acciona Agua at [83]; Ingeteam at [123].

[66] Applicant's outline of submissions: remittal question at paragraph [74].

[67] See Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at 580-581 [98]- [99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[68] See Undershaft (No 1) Ltd v Commissioner of Taxation [2009] FCA 41; (2009) 253 ALR 280 at [69]- [74] (Lindgren J); Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [76] (French J, as his Honour then was).

[69] Ibid Hicks at [75] (French J, as his Honour then was).

[70] Building Industry Fairness (Security of Payment) Act 2017 (Qld) s 101(3)(b).

[72] Probuild at 16 [39] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) quoting Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd [2016] HCA 52; (2016) 260 CLR 340 at 345-6 [3]- [4] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).

[74] Sun Engineering at 405-406 [21]-[23].

[75] First respondent's outline of submissions on remitter filed 23 October 2025 (CFI 22) at [6].

[76] See further Probuild at 6 [4] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

[77] That is the date of my primary judgment.