Tomkins Commercial & Industrial Builders Pty Ltd v York Property Holdings Pty Ltd [2025] QSC 340

No appearances for the second and third respondents

• [1] On 17 October 2025, I delivered judgment in the substantive proceeding in respect of an application brought by the applicant (Tomkins) challenging aspects of two adjudication decisions made by the second respondent (the Adjudicator) under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (the BIF Act).[1]
• [2] The full background to the proceeding is set out in my earlier judgment. These reasons should be read together with my earlier judgment. In brief, the first respondent, (York), was a party to a commercial contract for the construction of an apartment tower at Main Beach, Queensland. York was the principal and Tomkins was the head contractor. Disputes arose between the parties about a number of progress payment claims made by Tomkins. Tomkins applied for adjudication under the BIF Act in respect of two such payment claims. The Adjudicator gave his decision on 1 August 2024 (First Adjudication Decision) and his second decision on 22 September 2024 (Second Adjudication Decision).
• [3] In the substantive proceeding commenced by Tomkins in this Court, Tomkins alleged the Adjudicator's decisions were affected in certain respects by a multitude of jurisdictional errors and were, to that extent, void.
• [4] I largely rejected Tomkins' various claims of jurisdictional error. I nevertheless, upheld one particular aspect of Tomkins' claim, concerning jurisdictional error on the part of the Adjudicator when dealing with the "building façade" aspect of the Second Adjudication Decision. I determined the Adjudicator had made a number of jurisdictional errors and therefore made orders in Tomkins' favour in respect of that matter. I otherwise dismissed the balance of Tomkins' application.
• [5] What remains now is the question of costs. The parties were content for that matter to be dealt with on the papers, without an oral hearing. I therefore made an order to that effect and directed the parties to provide brief written submissions on costs. Each has done so.
• [6] These reasons deal with the appropriate orders to make as to costs.

• [7] The court has a wide discretion on costs. The discretion is unfettered but must be exercised without caprice and by having regard only to relevant considerations.[2] The general rule is that costs follow the event unless the court orders otherwise: r 681(1) Uniform Civil Procedure Rules 1999 (Qld), (UCPR). The primary purpose of an award of costs is to indemnify the successful party from the expense that it would not otherwise have incurred. Costs are not awarded to punish an unsuccessful party. The rationale for the general principle is grounded in reasons of fairness and policy. Fairness dictates that an unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.[3]
• [8] In cases where the "event" in question is a single cause of action, issue or claim for relief, and where there are no other circumstances that would compel a contrary order, the exercise of the discretion is relatively straightforward; the party that was successful in the litigation is entitled to an order for costs in its favour.
• [9] Where a party has had mixed success in respect of several discrete claims or issues, the position is not so simple. In the event, the applicant has not been wholly successful.
• [10] In such cases, the court may consider it appropriate to make an order for costs in relation to a particular question in, or a particular part of, a proceeding, pursuant to r 684(1) of the UCPR.
• [11] However, the fact that a party has not been wholly successful in the litigation is not necessarily a reason for denying application of the general rule. In Alborn v Stephens [2010] QCA 58 at [8] (Muir JA, Holmes JA & Daubney J agreeing) observed that "a party which has not been entirely successful is not inevitably or even, perhaps, normally deprived of some of its costs".
• [12] Nevertheless, in such cases, it is appropriate for the Court to consider the nature and substance of the litigation, and the issues and matters upon which the applicant succeeded and those upon which it failed, in order to decide the appropriate order to be made with respect to costs. In doing so, the Court is entitled to take "an impressionistic and pragmatic view" as to what were the real heads of controversy in the litigation and will strive to avoid assessments of costs in a complicated form, according to issues in the technical sense.

• [13] Notwithstanding it succeeded in only one particular aspect of its application, Tomkins nevertheless submits it was the successful party in the litigation. It says that, taking a pragmatic view, the relevant "event" to be followed is that its most valuable challenge to the Adjudicator's decisions was upheld, with the result that it is entitled to be paid an additional $4,764,178.27.
• [14] On that basis, Tomkins submits that the appropriate order to be made is that York pay half of its costs on the standard basis, because:

(a) It was necessary for it to commence and prosecute the proceeding to vindicate its statutory right to an additional amount by way of progress payment in respect of the Second Adjudication Decision, which was largely successful.

(b) It accepts it was not successful in any of its challenges to the First Adjudication Decision.

(c) On a quantum basis, it obtained favourable orders in respect of nearly 85% of the deductions that it challenged (i.e., $4,764,178.27 of challenged deductions totalling $5,656,777.31).

(d) Various facts, issues and principles which were the subject of submissions by the parties were common to jurisdictional errors upon which it had varied success; and

(e) Although it accepts there would have been some costs thrown away because it did not press some of the alleged jurisdictional errors relating to head contract variations 171 and 178 at the hearing, the issues in dispute were narrowed as a result.

• [15] Tomkins also notes that when I delivered my judgment, York immediately made an oral application for orders to stay enforcement of the judgment for five business days so that it could decide whether to appeal; and that York also sought an order to extend the stay for five further business days if it filed a notice of appeal and application for stay. Tomkins submits this "indulgence" was sought without any notice to it and without York identifying any grounds of appeal so as to demonstrate a good arguable case on appeal. It further submits that the application necessitated a further hearing on 17 October 2025 at which York's application was dismissed. Tomkins says that it is therefore appropriate that it have its costs of that application as well.
• [16] For its part, York accepts that Tomkins has had partial success in the proceeding. Nevertheless, it contends that it is not appropriate that it be ordered to pay Tomkins' costs of the proceeding. It points out that, on an issues basis, Tomkins' success was limited and confined to one aspect of the Second Adjudication Decision, whereas it was otherwise the successful party on most of the issues in the proceeding; and that Tomkins belatedly abandoned several other issues at the start of the hearing of the application.
• [17] Notwithstanding, York does not seek costs orders on an issue-by-issue basis. Rather it submits that each party should bear its own costs. It says this is the appropriate order because:

(a) in broad terms, there were two parts of the proceeding, namely, a challenge to the validity of parts of each of the First and Second Adjudication Decisions;

(b) as to the First Adjudication Decision, York was wholly successful in circumstances where:

(i) Tomkins did not press the alleged jurisdictional errors the subject of "Issue 1" and "Issue 3", which involved several asserted jurisdictional errors;

(ii) Tomkins was wholly unsuccessful in relation to "Issue 2" which involved four separate allegations of jurisdictional error; and

(c) in the premises above, it would be open to the Court to make an order under r 684(1) of the UCPR that York have its costs for that part of the proceeding relating to the First Adjudication Decision;

(d) as to the Second Adjudication Decision:

(i) "Issue 1" related to nine separate allegations of jurisdictional error in respect of three separate findings by the Adjudicator (a "defective works deduction", a "façade deduction" and a "pipework deduction");

(ii) Tomkins was wholly unsuccessful, other than with respect to the façade deduction issue;

(iii) the jurisdictional error established related to the Adjudicator's finding regarding the façade deduction, and this was an error only "of the kind" that had been complained of by Tomkins. York argues that I did not accept Jurisdictional Error 7 as it had been advanced by Tomkins (relevantly, a "Failure to consider Tomkins' submissions and the provisions of the Contract"). Rather, it says the finding I made was that the Adjudicator had not considered the matters required by s 88(2) of the BIF Act being the payment schedule and York's submissions;

(iv) there was no commonality between the established jurisdictional error I found and the allegations of jurisdictional error in respect of the First Adjudication Decision. The façade deduction was not in issue in the First Adjudication Decision as it had been conceded by Tomkins in its adjudication application;

(v) at the commencement of the hearing, Tomkins elected not to press "Issue 2" which involved two separate allegations of jurisdictional error.

• [18] York says there was really no saving of the Court's time by Tomkins abandoning five of its grounds, noting that the hearing occupied the full two days that had been allocated for the matter. Further, it says the abandonment of those grounds came at a later stage, after it had already incurred costs thrown away to address those issues in preparing for the hearing.
• [19] York submits that the orders it proposes would reflect, in general terms, its complete success in relation to the First Adjudication Decision, and Tomkins' mixed success in relation to the Second Adjudication Decision; and each party bearing its own costs is an efficient way to net-off what would otherwise be fair cost orders for issues in different directions as between the parties.

• [20] Tomkins was only partially successful in its application. Whilst it is correct to say that in terms of quantum that part of its claim upon which it was successful was the most valuable, that is not the only consideration in my view. It alleged a multitude of jurisdictional errors but failed to establish almost all of them. It wholly failed to establish any jurisdictional error with respect to the First Adjudication Decision.
• [21] I do not consider it appropriate to proceed under r 684(1) of the UCPR to make separate awards for costs according to the issues resolved in favour of one party or another. Whilst there were separate issues to be considered in respect of two challenged adjudication decisions, the determination of the separate alleged complaints of jurisdictional error cannot properly be viewed in isolation.
• [22] Ultimately, in my opinion, it is appropriate that Tomkins receive an order for costs in its favour. The application was brought by Tomkins because it, as the contractor on the subject project, believed it had been wrongly denied payment of monies owed to it by the principal, York. It was vindicated in bringing the application by obtaining a substantial increase in the adjudication amount the subject of the Second Adjudication Decision.
• [23] In my opinion, the fact that Tomkins failed on the bulk of the issues raised by the application should not deny a costs order being made in its favour altogether. However, it is entirely relevant, in my view, to the extent of the costs order to be made.
• [24] Whilst there were common issues and complaints raised in respect of other grounds similar to those upon which Tomkins succeeded, that did not lead to any real saving of court time, nor any material reduction in the respondent's time and costs to respond to each issue. Tomkins abandoned large parts of its challenges to the Adjudicator's decision at a late stage. Its written and oral submissions were unduly verbose and repetitive. The extent of its affidavit material, compiling the material from the adjudication decisions, was oppressive and was not distilled or refined for the hearing with any great care or precision. The bulk of the hearing time was occupied with dealing with the jurisdictional errors upon which Tomkins failed.
• [25] Although I rejected York's instanter oral application for a stay of execution of the judgment, pending its consideration of an appeal, that application was made immediately after the delivery of judgment, was responded to briefly by Tomkins and dealt with quickly by me.

• [28] The order I make with respect to costs is:
  1. The first respondent is to pay one-third of the applicant's costs on the standard basis.

[1] Tomkins Commercial & Industrial Builders Pty Ltd v York Property Holdings Pty Ltd [2025] QCS 261.

[2] Herrod v Johnston [2013] QCA 184, [24], citing Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 96.

[3] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 97 [67] (McHugh J, Brennan CJ agreeing).

[4] Vision Eye Institute Ltd v Kitchen (No 3) [2015] QSC 164, [13].

[5] Tomkins Commercial & Industrial Builders Pty Ltd v York Property Holdings Pty Ltd [2025] QCS 261, [156]-[163].