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[2026] ACTSC 15
General information, not legal advice.
Supreme Court of the ACT
2026-02-04
Muller AJ
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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: TP Dynamics (ACT) Pty Ltd v G&H Plant Hire Pty Ltd Citation: [2026] ACTSC 15 Hearing Date: 18 November 2025 Decision Date: 4 February 2026 Before: Muller AJ Decision: (1) The plaintiff’s application is dismissed. (2) The plaintiff is to pay the costs of the first defendant. Catchwords: CIVIL LAW – BUILDING AND CONSTRUCTION – Adjudication of progress payment claims – challenge to adjudicator’s decision in nature of certiorari – where adjudicator decided application before plaintiff responded – whether denial of natural justice – whether failure to consider – application dismissed BUILDING AND CONSTRUCTION – PAYMENT SCHEDULE – Where dispute over validity of purported payment schedule in response to payment claim – where service of payment schedule provides entitlement to adjudication response – requirement to clearly state proposed payment amount – intention to withhold payment not clearly disclosed – no valid payment schedule – plaintiff not entitled to adjudication response – no denial of natural justice ADMINISTRATIVE LAW – JUDICIAL REVIEW – Where allegations of failure to consider based on adequacy of reasons – errors and omissions in adjudicator’s reasons – whether errors disclose failure to consider – distinction between jurisdictional and non-jurisdictional error – no failure to consider disclosed Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 14(2), 22 Building and Construction Industry (Security of Payment) Act 2009 (ACT), ss 14, 16, 17, 19, 22, 23, 24, 38, 43 Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 69(b) Court Procedures Rules 2006 (ACT), r 3556 Fringe Benefits Tax Act 1986 (Cth) Supreme Court Act 1933 (ACT), s 34B Cases Cited: Barclay Mowlem Construction Ltd v Tesrol Walsh Bay [2004] NSWSC 716 Brodyn Pty Ltd v Davenport [2004] NSWCA 394; 61 NSWLR 42 Ceerose Pty v A-Civil Aust Pty Ltd [2023] NSWCA 214; 112 NSWLR 225 Clarence Street Pty Ltd v Isis Projects Pty Ltd [2005] NSWCA 391; 64 NSWLR 448 Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd [2005] NSWCA 228; 63 NSWLR 385 Craig v South Australia (1995) 184 CLR 163 Denham Constructions Pty Ltd v Islamic Republic of Pakistan (No 2) [2016] ACTSC 215 Emag Constructions Pty Ltd v Highrise Concrete Contractors (Aust) Pty Ltd [2003] NSWSC 903 Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247 Higgins v ACT (No 3) [2025] ACTSC 336 Melaleuca View Pty Ltd v Sutton Constructions Pty Ltd [2019] QSC 226 Minimax Fighting Systems Pty Ltd v Bremore Engineering (WA) Pty Ltd [2007] QSC 333 Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140 Musico v Davenport [2003] NSWSC 977 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; 264 CLR 1 Re Carey; ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; 32 WAR 501 South Western Sydney Local Health District v Gould [2018] NSWCA 69; 97 NSWLR 513 State Chamber of Commerce and Industry v The Commonwealth (1987) 163 CLR 329 Style Timber Floor Pty Ltd v Krivosudsky [2019] NSWCA 171; 100 NSWLR 133 WNA Construction Pty Ltd v Canberra Building and Maintenance Pty Ltd [2025] ACTCA 17 Parties: TP Dynamics (ACT) Pty Ltd (Plaintiff) G&H Plant Hire Pty Ltd (First Defendant) Christopher Larcos (Second Defendant) Representation: Counsel AJ Greinke (Plaintiff) JT Moffett (First Defendant) No appearance (Second Defendant) Solicitors MV Law (Plaintiff) Lauderdale Lawyers (First Defendant) No appearance (Second Defendant) File Number: SC 284 of 2025 MULLER AJ: Introduction
TP Dynamics (ACT) Pty Ltd (the plaintiff) is a builder. On 2 July 2024, the plaintiff entered into a contract with G&H Plant Hire Pty Ltd (the first defendant) for the performance of various earthworks and associated building work at a project in Canberra known as the Garema Hotel development. The project involved the construction of a 10-storey hotel on the site. The first defendant performed work at the site and submitted various progress claims seeking payment for the work that it performed.
A dispute arose between the parties concerning a payment claim submitted by the first defendant to the plaintiff on 19 May 2025. The first defendant applied for an adjudication of the payment claim and, on 13 July 2025, received a favourable adjudication decision in the amount of $917,746.63, including GST.
The plaintiff says that the adjudicator’s decision, made under s 24 of the Building and Construction Industry (Security of Payment) Act 2009 (ACT) (the SOP Act) is void for jurisdictional error and by its originating application, seeks a declaration to that effect in this Court.
The adjudicator is named in the application as the second defendant, and in filing a submitting appearance, evinces an intention to take no active part in the matter.
The originating application and the court’s power to grant the relief sought
The originating application is brought pursuant to s 34B of the Supreme Court Act 1933 (ACT) (Supreme Court Act). The court has power pursuant to that section to grant relief by way of a prerogative order. Rule 3556 of the Court Procedures Rules 2006 (ACT) provides that a statutory order of review or prerogative relief must be sought by way of judicial review by originating application. Such relief is available in circumstances where the plaintiff establishes jurisdictional error on the part of the decision maker.
The framing of the application as one seeking a prerogative order by way of judicial review, as opposed to one seeking to appeal the decision of the adjudicator on the basis of an error of law, is important for the reasons that are developed below. The factual basis for the claim
The relevant chronology of events is helpfully summarised in the plaintiff’s outline of submissions: On 19 May 2025, Michael Hodge on behalf of G&H sent an email to Jordan Wind for TPD, attaching a payment claim made pursuant to the SOP Act. On 16 June 2025, Mr Hodge sent an email to Mr Wind attaching a notice pursuant to s 19(2) of the SOP Act, giving notice that G&H intended to apply for adjudication of the payment claim and that TPD had 5 business days to serve a payment schedule or to pay the claim in full. On 18 June 2025, Fiona King on behalf of TPD sent an email to Mr Hodge. The Adjudicator found that this email was not a payment schedule. […] On 4 July 2025, TPD received an email from Adjudicate Today with notice of an Adjudication Application lodged by G&H in respect of the payment claim. Section 22(1)(a) of the SOP Act fixed the time for TPD to provide an adjudication response relevantly as 7 business days after receipt of the Adjudication Application, which was 15 July 2025. At 12:17pm on 14 July 2025, TPD received an email from Adjudicate Today stating that it had received the Adjudicator’s decision and attaching an invoice for payment. TPD forwarded that email to its solicitors who had been preparing the adjudication response. The solicitors sent email correspondence requesting that [the] Adjudicator refrain from releasing his decision until after TPD had the opportunity to respond on 15 July 2025. The Adjudicator, through Adjudicate Today, responded as follows: I understand that the parties have been made aware that I have made my Decision in this matter. As a courtesy, I advise that my role is now functus officio and, accordingly, it is not open to me to consider any further submissions or otherwise act further in this matter. After G&H paid the Adjudicator’s fees, the adjudication decision was released, which was dated 13 July 2025. The adjudicated amount was $917,746.63. (Emphasis in original, footnotes omitted.) The legislative parameters relating to review of an adjudication decision
Section 34B of the Supreme Court Act states: 34B Habeas corpus and prerogative orders (1) The Supreme Court has power to grant any relief by way of a habeas corpus order or prerogative order. (2) In this section: habeas corpus order means an order the relief under which is in the nature of, and to the same effect as, relief by way of a writ of habeas corpus. prerogative order means an order the relief under which is in the nature of, and to the same effect as, relief by way of— (a) a writ of mandamus, prohibition or certiorari; or (b) an information in the nature of quo warranto. relief includes remedy.
Guiding principles
The scope of certiorari was described by the High Court in Craig v South Australia (1995) 184 CLR 163 (Craig) at 175: Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made.
Later, at 177, in describing jurisdictional error, the Court stated: An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.
Notwithstanding the absence of any argument from the parties to the contrary, a question arises as to whether a decision of the adjudicator in these circumstances is one which is within the scope of certiorari, noting the reference in Craig to the exercise of supervision over acts of an inferior court or tribunal. In Craig, it was expressed as common ground that: … the substantive content of the [Supreme Court of South Australia] Full Court's jurisdiction under r 98 [of the Supreme Court Rules 1987 (SA)] to make an "order in the nature of ... certiorari" corresponds, for all relevant purposes, with that of the [South Australian] Supreme Court's previous inherent jurisdiction to order the issue of the prerogative writ of certiorari. That writ went only to an inferior court or to certain tribunals exercising governmental powers. (Footnotes omitted.)
Section 34B provides the ACT Supreme Court with power to make a prerogative order with that power described in broad terms.
In relation to an adjudication decision under the equivalent NSW law, McDougall J in Musico v Davenport [2003] NSWSC 977 held at [40], that the determination of an adjudicator under s 22 of the NSW SOP Act was open to judicial review in the nature of certiorari. Palmer J reached the same view in relation to the review of an adjudication decision in Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140 (Luikens), observing at [14]: I agree that an adjudicator appointed under the [NSW SOP Act] is not an “inferior court”. Whether he or she is a “tribunal” is debatable but unnecessary to decide because it has long been held that the reach of the prerogative writs extends beyond courts or tribunals, strictly so called, to include any person or body having legal authority to determine questions affecting common law or statutory rights or obligations of others, as long as the person or body, in making such determination, is required expressly, or by implication from the nature of the duty being performed, to act judicially. In this context, a duty to act judicially means a duty to observe the basic rules of natural justice, namely, to afford a person who might be adversely affected by the decision a reasonable opportunity of presenting an informed case in opposition and, second, to arrive at the relevant decision uninfluenced by bias or self-interest. (Citations omitted.)
The grounds of the application
The originating application identifies the following grounds: 1. The second defendant (Adjudicator) failed to consider the matters required by s 24(2) of the [SOP Act], specifically: (a) failed to consider submissions made by the first defendant in its adjudication application, contrary to s 24(2)(c); and (b) failed to consider relevant provisions of the construction contract, contrary to s 24(2)(b). 2. The Adjudicator decided the adjudication application before the end of the period within which the respondent may give an adjudication response, contrary to s 23(1) of the Act. 3. The Adjudicator fell into jurisdictional error by finding that the email sent to the first defendant on 18 June 2025 was not a payment schedule within the meaning of s 16 of the Act. (Emphasis in original.)
Ground 3 is, on its face, an assertion of legal error that is not within the ambit of an application pursuant to s 34B of the Supreme Court Act. The plaintiff contends that any one of the identified grounds is sufficient to vitiate the adjudicator’s decision. I disagree on the basis that ground 3, standing alone, does not amount to an assertion of jurisdictional error. Having said that, where the refusal to adopt the subject email as a payment schedule is in error, such that the jurisdiction to make the adjudication decision did not exist, that factor in combination with the exercise of jurisdiction by the adjudicator may amount to jurisdictional error.
The various grounds are considered further below.
The plaintiff’s submissions
Ground 1: Failure to consider
The plaintiff describes the first ground as the failure to consider the claimant’s submissions as required by s 24(2) of the SOP Act.
Section 24(2) requires the adjudicator to only have regard to a limited range of evidence in deciding an adjudication application, including: (a) the construction contract to which the application relates (s 24(2)(b)); and (b) the payment claim to which the application relates, together with any submission, including relevant documentation, properly made by the claimant in support of the claim (s 24(2)(c)).
Section 24(3) imposes an obligation on the adjudicator to provide written reasons for their determination. The plaintiff submits that this obligation imposes a statutory duty on the adjudicator to consider the materials provided for adjudication and come to a view as to the merits of the claim, and to demonstrate that this consideration has been made through the reasons for adjudication. The plaintiff submits that the second defendant’s reasons do not reflect the submissions of the first defendant or the related provisions of the construction contract, and that the second defendant therefore failed to consider the first defendant’s submissions, contrary to his statutory duty to consider all the material.
Relevantly, the plaintiff submits that the first defendant made submissions to the adjudication on the following issues: (a) The first defendant’s entitlement to previously rejected variation claims, relying on distinct grounds for each claimed entitlement to variation; and (b) The first defendant’s claim for release of retention monies.
The plaintiff contends that the second defendant’s reasons as to the merits of the claim were minimal and therefore insufficient in demonstrating he had turned his mind to the first defendant’s submissions. The reasons were as follows: … the Claimant says it has carried out the works and provided the services for which it is claiming payment. In the circumstances, I see no reason why the Claimant should not be entitled to the whole of the claimed amount.
The plaintiff submits that the second defendant incorrectly summarised the submission of the first defendant. It notes that the first defendant’s claim was for entitlement to payment for variation claims for work which differed from the original contract, and release of retention monies on the basis of rights arising from the contract terms, rather than a claim for carrying out particular works or services. In relation to the claim for release of retention monies, the first defendant’s submission was that the retention clause of the contract is voided by s 14 of the SOP Act, which prohibits the operation of “pay when paid” clauses in construction contracts. “Pay when paid” clauses are contractual arrangements which make the payment liability of a party under a construction contract contingent on the party first receiving payment from a third party.
Ground 2: Premature determination
The second ground is described as the premature determination of the application with reference to s 23(1) of the SOP Act. Section 23(1) provides that: 23 Adjudication procedures (1) The adjudicator for an adjudication application must not decide the application until after the end of the period within which the respondent may give an adjudication response.
Section 22(1) defines the period within which the respondent may give an adjudication response as the later of: (a) seven business days after the respondent receives a copy of the application; or (b) five business days after receiving notice of the adjudicator’s acceptance of the application.
Section 22(3) also indicates that the respondent may give an adjudication response only if the respondent has provided a payment schedule to the claimant within the time mentioned in s 16(4) or s 19(2)(b). Section 16(4) requires the respondent to provide a payment schedule within 10 business days after the payment claim is provided; s 19(2)(b) requires the payment schedule to be provided to the respondent within five business days of receiving the claimant’s adjudication notice.
As noted by the plaintiff, in this case, the period within which the plaintiff, as respondent to the adjudication claim, was entitled to give its response was within seven business days of 4 July 2025; that is, by 15 July 2025. The second defendant made his decision on 13 July 2025. As set out earlier, on 14 July 2025, the plaintiff communicated to the second defendant that it was preparing its response to the adjudication claim, and requested that the second defendant refrain from issuing his decision until after 15 July 2025. The second defendant’s reply was that his role was now functus officio, and the adjudication decision was issued regardless.
The plaintiff submits that the SOP Act is identical in operation to the relevant provisions of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the NSW SOP Act), and refers to a number of decisions which have interpreted the equivalent provision of the NSW SOP Act. The decisions in Emag Constructions Pty Ltd v Highrise Concrete Contractors (Aust) Pty Ltd [2003] NSWSC 903 (Emag) at [56] and Brodyn Pty Ltd v Davenport [2004] NSWCA 394; 61 NSWLR 42 (Brodyn) at [57] both indicate that the requirement to give an opportunity to a respondent to make submissions is a feature of natural justice principles, and that the importance generally of natural justice is such that a failure by an adjudicator to receive and consider submissions, in breach of this requirement, will render the determination a nullity.
The plaintiff submits that the operation of s 23(1) does not depend on whether the respondent to an adjudication claim has served a payment schedule within the time frame required by s 22(3). It asserts that, as a matter of natural justice, it is inappropriate for an adjudicator to decide the issue of whether or not a valid payment schedule was served, in the absence of submissions from the respondent. The plaintiff further notes that in some cases, a respondent might seek to put submissions before the adjudicator advancing jurisdictional issues.
Ground 3: The purported payment schedule
The third ground concerns the first defendant’s payment claim, and the purported payment schedule forwarded by the plaintiff on 18 June 2025. The plaintiff challenges the second defendant’s finding that the email attaching the purported payment schedule did not meet the requirements of a payment schedule.
Section 16 of the SOP Act states: 16 Payment schedule (1) A respondent who is given a payment claim may reply to the claim by giving a schedule of proposed payment (a payment schedule) to the claimant. Note For how documents may be served, see the Legislation Act, pt 19.5. (2) A payment schedule must— (a) identify the payment claim to which it relates; and (b) state the amount of the payment, if any, that the respondent proposes to make (the scheduled amount). (3) If the scheduled amount is less than the claimed amount, the schedule must indicate— (a) why the scheduled amount is less; and (b) if the scheduled amount is less because the respondent is withholding payment for any reason—the respondent's reasons for withholding payment. (4) The respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment to which the payment claim relates if— (a) the claimant gives a payment claim to the respondent; and (b) the respondent does not provide a payment schedule to the claimant within the earlier of— (i) the time required by the relevant construction contract; or (ii) 10 business days after the payment claim is given to the respondent.
The second defendant found that the plaintiff’s email did not constitute a payment schedule because it did not meet the requirement of s 16(2)(b), that the payment schedule must “state the amount of the payment, if any, that the respondent proposes to make”. The second defendant found that the payment schedule “must actually specify a dollar amount, even if $0”, and in support of this interpretation, referred to what he purported to be authority on the term “state” (in the context of payment schedules), in the High Court judgment in State Chamber of Commerce and Industry v The Commonwealth (1987) 163 CLR 329 (SCCI v Commonwealth). The plaintiff submits that SCCI v Commonwealth does not in fact analyse the expression “to state” and instead decided the validity of the Fringe Benefits Tax Act 1986 (Cth).
The plaintiff contends that insofar as the second defendant purported to rely on SCCI v Commonwealth in interpreting s 16(2)(b), his adjudication was invalid because it relied on non-existent High Court reasoning. The plaintiff submits that the second defendant’s interpretation runs contrary to established authority on the meaning of “state”, to the effect that it is sufficient for a communication purporting to be a payment schedule to imply that no payment will be made.
The plaintiff submits that an inference can be drawn from the email that the plaintiff did not intend to make any payment because it was rejecting the first defendant’s claim, while inviting the first defendant to resubmit its claim.
The submissions of the first defendant
Ground 1: Failure to consider
The first defendant submits that there was no requirement on the second defendant to conduct a “merits review” of the claim, or to set out detailed reasoning in relation to the outcome of the adjudication. It contends that the authorities relied on by the plaintiff in support of the proposition that detailed reasons are required were expressly rejected by the NSW Court of Appeal in Ceerose Pty v A-Civil Aust Pty Ltd [2023] NSWCA 214; 112 NSWLR 225 (Ceerose).
In Ceerose, the NSW Court of Appeal considered s 22 of the NSW SOP Act, the equivalent provision to s 24 of the ACT SOP Act, and the question of whether an adjudicator falls into jurisdictional error if there is a failure to investigate the “true merits” of the claim. The Court found that it would likely be a “rare case” in which a failure by an adjudicator to refer to a submission on a centrally important matter, would establish a breach of duty rising to jurisdictional error. At [62]-[66], Payne JA said: 62. The attempt to articulate, using other language, what is required by the verb “consider” will usually be misconceived. Certainly, it is misconceived in the present statutory circumstance. In a practical sense, the problem for a party challenging a determination is not to identify whether the mental process undertaken by the adjudicator was “active”, “intellectual” or “genuine”, but rather to identify a basis on which it could be said that consideration did not occur. The mental processes of the adjudicator will be entirely opaque, except to the extent that they are revealed in his or her reasons. However, as already noted, the failure to identify a particular claim or response in reasons will not of itself demonstrate that the adjudicator failed to consider it. That is so for a number of reasons.
First, reasons are not necessarily, or even usually, a comprehensive statement of all aspects of a decision-maker’s thinking. Even judicial reasons, which are expected to be more comprehensive and detailed than those of an administrative decision-maker, are not required to deal with all the evidence or all the submissions. A process of selection is undertaken: that is a necessary part of the process and not merely a concession to judicial frailty. 64. Secondly, the scope of the reasons will inevitably reflect the practical circumstances under which the adjudicator is operating. Section 21(3)(a)(ii) of the Security of Payment Act requires the adjudicator to determine an adjudication application “as expeditiously as possible and, in any case … within 10 business days after ... the date on which notice of the adjudicator's acceptance of the application is served on the claimant and the respondent as to his or her acceptance of the application”. One of the matters which the adjudicator is to consider is the “adjudication response” filed by the respondent to the claim. The adjudication response may be lodged five business days after receiving a copy of the application, or two business days after receiving notice of the adjudicator’s acceptance of the application, whichever is later: s 20(1). Thus, unless time is extended by the parties, the adjudicator may have as few as eight business days to determine the application by reference to the adjudication response. 65. Thirdly, it is not unusual for the material supplied to an adjudicator to run into hundreds and even thousands of pages (as it did in this case). It is inevitable that, in accordance with this statutory scheme, an adjudicator will spend more time on some items within a claim than on others. The reasons may reflect such choices or they may not. It would, however, be entirely rational for an adjudicator to spend little time on an item of, say, $3,000 in a total claim of over $1 million, both in considering submissions and in preparing reasons. 66. Fourthly, there is a question as to what specific inference is to be drawn from the absence of reference to a particular submission or contention in a set of reasons. There are a range of possible explanations, only one of which is that the material was not considered. Another is that the claim was readily seen to be well-founded and the submissions to the contrary as lacking in substance. However, the latter would be a good reason to omit reference to the issue in the reasons. If the submission had been misunderstood, the facts mistaken or the law wrongly identified, that might explain absence from the reasons of something expected to be addressed, but not lack of consideration. Of course, the duty to consider a submission is separate from the absence of any duty to deal with it correctly, whether in law or in fact. The point is rather that an unreviewable error may explain why the reasons do not advert to a particular matter.
Ground 2: Premature determination
The first defendant’s answer to ground 2 is based on the assumption that the plaintiff’s email is not a payment schedule. It contends that, if the email is not a payment schedule, then the consequences for the plaintiff are “wholly draconian” by reason of the operation of s 22 of the SOP Act.
Section 22(3) provides that a respondent to an adjudication claim may only give an adjudication response if the respondent has provided a payment schedule to the claimant within the time limits specified by s 16(4) or s 19(2)(b). The first defendant submits that neither provision is of assistance to the plaintiff.
In those circumstances, the first defendant says that s 23(3) is determinative of the plaintiff’s submission on this ground. Subsection 23(3) provides: 23 Adjudication procedures … (3) The adjudicator must decide an adjudication application as soon as possible but not later than— (a) if the respondent is entitled to give an adjudication response under section 22—10 business days after the earlier of— (i) the date on which the adjudicator receives the adjudication response; and (ii) the date on which the adjudication response is required to be given to the adjudicator under section 22; or (b) if the respondent is not entitled to give an adjudication response under section 22—10 business days after the respondent receives a copy of the adjudication application; or (c) if a further time is agreed between the claimant and the respondent—the further time.
The first defendant submits that, by reason of the plaintiff’s failure to submit a payment schedule within the statutory time limits, the plaintiff was not entitled to give an adjudication response, and that s 23(3)(b) therefore applied to determine when the second defendant could decide the adjudication. In oral submissions, counsel for the first defendant characterised the making of a response to an adjudication as an “opt in” process, requiring the respondent to provide a valid payment schedule or otherwise lose the right to give an adjudication response. In the absence of a valid payment schedule, the second defendant was statutorily required to disregard any submissions made by the plaintiff. Counsel noted that the plaintiff could still have recourse to its contractual rights regardless of the outcome of the adjudication or its participation in the adjudication process, as recognised by s 38 of the SOP Act.
The first defendant notes that the plaintiff received the adjudication application on 4 July 2025, and that the second defendant therefore had until 18 July 2025 to decide the adjudication application. The first defendant submits that, as the second defendant determined the adjudication application on 14 July 2025, the adjudication decision was made within the statutory timeframe, and therefore no jurisdictional error arises in respect of this ground.
Ground 3: The purported payment schedule
The first defendant, consistent with its position in the original application for adjudication, submits that the email from the plaintiff dated 18 June 2025 did not constitute a payment schedule. The first defendant contends that the plaintiff was therefore not entitled to submit an adjudication response or submissions, and that if it had been lodged, the second defendant would have been precluded from considering the response.
The first defendant contends that the requirements of s 16(2) should be interpreted in light of the NSW Court of Appeal decision in Style Timber Floor Pty Ltd v Krivosudsky [2019] NSWCA 171; 100 NSWLR 133 (Krivosudsky). In Krivosudsky, in interpreting the equivalent provisions of the NSW SOP Act, Leeming JA stated that the question of whether a document constituted a payment schedule required consideration of whether the document is “something which is capable of ascertainment readily, and (at least ordinarily) without the assistance of a lawyer”.
His Honour went on to state at [45]: Fourthly, and perhaps most importantly for present purposes, the payment schedule serves two important functions under the Act. The first is to inform the claimant as to the metes and bounds of its dispute with the respondent, so that it can make an informed choice as to whether to engage the expedited pro tem adjudication procedures under Division 2. The second is to articulate the respondent’s case which will then be determined by the adjudicator. It will also enable adjudicators to assess whether to accept appointment as an adjudicator to a dispute. At the time an adjudication application is made, all that the claimant and the prospective adjudicator will know of the nature of the respondent’s side of the case is what is contained in its payment schedule.
Section 14(2) of the NSW SOP Act differs from s 16(2) of the ACT SOP Act, in that s 14(2)(b) uses the word “indicate” rather than “state”: 14 Payment schedules … (2) A payment schedule— (a) must identify the payment claim to which it relates, and (b) must indicate the amount of the payment (if any) that the respondent proposes to make (the scheduled amount).
In Luikens at [78], Palmer J made the following comments on the distinction between “indicate” and “state”: Section 14(3) of the [NSW SOP Act], in requiring a respondent to “indicate” its reasons for withholding payment, does not require that a payment schedule give full particulars of those reasons. The use of the word “indicate” rather than “state”, “specify” or “set out”, conveys an impression that some want of precision and particularity is permissible as long as the essence of “the reason” for withholding payment is made known sufficiently to enable the claimant to make a decision whether or not to pursue the claim and to understand the nature of the case it will have to meet in an adjudication.
It is implicit in his Honour’s decision that use of the word “state” as opposed to “indicate” imposes a higher bar in terms of the precision and particularity of the communication.
The plaintiff’s submissions in reply
Ground 1: Failure to consider
The plaintiff submits that the first defendant’s submissions do not challenge the plaintiff’s contention that the second defendant failed to consider the first defendant’s submissions and instead cavil with the proposition that this failure may constitute a jurisdictional error.
In this respect, the plaintiff contends that the first defendant’s characterisation of Ceerose is overly broad. The plaintiff concedes that Ceerose does not require an adjudicator to undertake an overly critical or “true merits” review of a payment claim, or to refer to every submission made, but notes that the adjudicator must still consider the matters set out in s 24(2).
The plaintiff submits that in this case, the second defendant ignored key submissions made by the first defendant, which constituted a “centrally important matter” as expressed in Ceerose. The plaintiff ultimately submits that the level of the second defendant’s failure to have regard to those submissions was such that the threshold for jurisdictional error as expressed in Ceerose was met.
Ground 2: Premature determination
The plaintiff submits that this ground relates to whether the second defendant decided the application before the minimum time required by s 23(1), rather than whether the time taken for the second defendant to decide exceeded the maximum time permitted under s 23(3). To that end, the plaintiff contends that the first defendant’s submission, that the plaintiff was not entitled to provide an adjudication response by virtue of s 22(3), attempts to assert an exception to the operation of s 23(1).
The plaintiff submits that insofar as there is any exception to s 23(1), the obligation to provide natural justice is not subject to such an exception, and that no such exception is found in the NSW authorities on the issue of natural justice. In Brodyn, Hodgson JA stated at [57], referring to the NSW SOP Act, that: The circumstance that the legislation requires notice to the respondent and an opportunity to the respondent to make submissions (ss.17(1) and (2), 20, 21(1), 22(2)(d)) confirms that natural justice is to be afforded to the extent contemplated by these provisions; and in my opinion, such is the importance generally of natural justice that one can infer a legislative intention that this is essential to validity, so that if there is a failure by the adjudicator to receive and consider submissions, occasioned by breach of these provisions, the determination will be a nullity. On this basis, I agree with the result reached in Emag Constructions Pty. Limited v. Highrise Concrete Contractors (Aust) Pty. Limited [2003] NSWSC 903. I note there is some controversy as to whether denial of natural justice generally results in voidness or voidability (see for example Ridge v. Baldwin [1964] AC 40, Durayappah v. Fernando [1967] 2 AC 337, Banks v. Transport Regulation Board (Vic) (1968) 119 CLR 222 at 233, Calvin v. Carr [1980] AC 574 at 589-90, Minister for Immigration v. Bhardwaj (2002) 209 CLR 597 at 630-34); but in my opinion, in cases such as this where there is a disclosed legislative intention to make a particular measure of natural justice a pre-condition of validity, failure to afford that measure of natural justice does make the determination void.
The plaintiff submits that the first defendant has not challenged the natural justice considerations set out by the plaintiff, and contends that the text of the SOP Act is inconsistent with there being an exception to s 23(1). In support of its textual interpretation, the plaintiff notes that neither s 23(1) nor s 23(2) are stated to be subject to s 23(3) or otherwise qualified. The plaintiff further contends that s 23(1) prohibits an adjudication decision “until after the end of the period” within which the respondent may respond, and that that period is fixed by s 23(2). The plaintiff submits that, on the first defendant’s submission, no period exists for giving a response, such that the “end of the period” would be incapable of being fixed, and therefore no decision could be made.
The plaintiff also submits that s 24(2) treats submissions and adjudication responses as distinct items that may be considered by an adjudicator, meaning a respondent could still make submissions to the adjudicator despite not putting on a formal response. The plaintiff says that this supports a construction of s 23(1) which emphasises providing an opportunity for the respondent to be heard on issues of jurisdiction before an adjudication is made.
Ground 3: The purported payment schedule
The plaintiff submits that the first defendant’s contention that the purported payment schedule was required to explicitly state a dollar amount is unsupported by any authority. The plaintiff further contends that the leading authority dealing with the difference in language between “state” and “indicate” is Minimax Fighting Systems Pty Ltd v Bremore Engineering (WA) Pty Ltd [2007] QSC 333 (Minimax). In Minimax, the Queensland Supreme Court considered an email response to a payment claim in the following terms: For this reasons we accept not your invoice but we suggest to have a meeting on site next year to clarify the situation and to find a solution for both sides.
At [20], Chesterman J observed of the Qld SOP Act that: The Act emphasises speed and informality. Accordingly one should not approach the question whether a document satisfies the description of a payment schedule (or payment claim for that matter) from an unduly critical viewpoint. No particular form is required. One is concerned only with whether the content of the document in question satisfies the statutory description.
The plaintiff submits that the authorities relied on by the first defendant do suggest that the level of detail required by the word “state” may be greater, but not that an intention not to provide payment cannot be inferred or implied from a payment schedule.
In that context, the plaintiff contends that its email clearly conveyed that the plaintiff did not intend to make payment to the first defendant, on the basis that it considered the payment claim invalid and had set out reasons why it considered the claim invalid. It submits that the deficiencies identified in that email were sufficient to set out the metes and bounds of the dispute to the second defendant. The plaintiff says that the fact it subsequently made part payment to the second defendant on 1 July 2025 is irrelevant to determining whether the email was a payment schedule.
In oral submissions, counsel for the first defendant submitted that the payment schedule in Minimax was distinguishable from the plaintiff’s email on the basis that the email in Minimax contained a positive representation that there was no intention to pay. Counsel contended that the plaintiff’s email contained no equivalent statement giving effect to an intention to make no payment.
Consideration
Ground 2: Did the second defendant decide the adjudication application prematurely with reference to s 23(1)?
The plaintiff contends that the question must be answered positively on two bases: (a) First, because the adjudicator delivered his decision on 14 July 2025, which was one day prior to the expiry of the period within which the plaintiff was entitled to give an adjudication response pursuant to s 22(1) of the SOP Act (assuming the subject email communication constituted a payment schedule within the meaning of the Act). (b) Second, assuming that the email did not constitute a payment schedule, the failure to consider the plaintiff’s adjudication response was nevertheless a denial of a freestanding obligation to afford natural justice to a party.
The first defendant says that the question must be answered negatively because the plaintiff failed to provide a payment schedule within the meaning of s 16 of the SOP Act and was therefore not entitled to give an adjudication response. In this respect, the first defendant relies upon s 22(3) of the Act, which limits the rights of a respondent to an adjudication application by preventing an adjudication response being given unless a payment schedule has been provided within the time mentioned in s 16(4) or s 19(2)(b).
There was no dispute raised before me as to the validity of the document asserted by the first defendant to be a payment claim for the purposes of the SOP Act. There was also no contention that if the email communication relied upon by the plaintiff was a payment schedule within the meaning of the Act, the second defendant’s response was premature, and the plaintiff’s application should succeed. Whether or not the email communication was a payment schedule forms the basis for the argument constituting the third ground of the plaintiff’s application and I will return to it later. I will first address the contention of the plaintiff that there exists a freestanding obligation to afford natural justice to a party in these circumstances that extended to giving due consideration to the adjudication response that was to be provided by the plaintiff to the second defendant.
It is important to note that there are two response windows created by ss 16 and 19. The first window under s 16(4) is opened by the giving of a payment claim to the respondent. Under s 16(4), the respondent then has 10 business days after the payment claim is given to the respondent within which to provide a payment schedule (unless some shorter time period is provided for in the relevant construction contract). A failure to provide a compliant payment schedule in the requisite period entitles the claimant to pursue recovery of the payment claim amount or any outstanding amount as a debt, pursuant to s 17. That path was not chosen in this instance. Instead, the first defendant elected to pursue an adjudication.
The second window, under s 19(2) of the SOP Act, is opened by the receipt of a notice of the claimant’s intention to apply for adjudication of the payment claim. The respondent then has an opportunity to provide a payment schedule within five business days after receiving the claimant’s notice. An adjudication application having been made, it is the second window with which the parties are concerned in this case. There are time frames for the lodgement of an adjudication application, but there is no suggestion in this case of any non-compliance with those timeframes.
… it is right to say that the [NSW] Security of Payment Act creates an entitlement that is "determined informally, summarily and quickly, and then summarily enforced without prejudice to the common law rights of both parties which can be determined in the normal manner". (Footnotes omitted.) Ground 3: Is the email communication a payment schedule?
The second defendant accepted the first defendant’s argument that the email communication was not a payment schedule for the purposes of the SOP Act. In his reasons at par 10, he said: However, the [first defendant] argues that this email “is not a payment schedule as it does not “state the amount of the payment, if any, that the [plaintiff] proposes to make” as required by section [16]2(b)”. In the [first defendant’s] view, the use of the word “state”, as distinct from, say, the use of the word “indicate” in the equivalent provision in the Building and Construction Industry Security of Payment Act 1999 (NSW), means that a payment schedule must actually specify a dollar amount, even if $0. (Footnotes omitted, emphasis in original.)
The second defendant went on to observe that although there was no ACT authority on point, he had been assisted in interpreting the word “state” for these purposes by the High Court’s analysis in SCCI v Commonwealth.
In SCCI v Commonwealth, the High Court considered the constitutional validity of the Fringe Benefits Tax Act 1986 (Cth) and whether its operation discriminated against the States. The facts in that case, and the ratio of the High Court’s decision, are not relevant to the present proceedings, and the High Court did not provide any analysis of the word “state”. To the extent that the case was relied upon by the first defendant in its submissions to the second defendant contained in the adjudication application, the emphasis appears to have been on the reliance by the majority in SCCI v Commonwealth at 348, on the Macquarie Dictionary to ascertain the ordinary meaning of “fringe benefit”. That the first defendant intended to rely on SCCI v Commonwealth solely to support the proposition that the Macquarie Dictionary is an authoritative source for finding the ordinary meaning of a word, is apparent from par 34 of its adjudication application: The Macquarie Dictionary, used by the High Court in State Chamber of Commerce and Industry v The Commonwealth (1987) 163 CLR 329 in paragraph [27], defines the verb “to state” as “to express something definitely or clearly in speech or writing”. The email issued on 18 June 2025 does not indicate any amount that [the plaintiff] proposes to pay, let alone meet the threshold of expressing an amount “definitely or clearly”.
Accepting that the decision of the High Court relied upon by the second defendant does not bear on the determination of the question before me, it is necessary to assess the email communication against the required elements of a payment schedule set out in s 16 of the SOP Act. The schedule must: (a) identify the payment claim to which it relates; (b) state the amount of the payment, if any, the respondent proposes to make; (c) where that payment is less than the full amount of the claim, state why a lesser amount is proposed; and (d) if it is a lesser amount because a payment is withheld for any reason, state why the payment is withheld.
The content of the plaintiff’s email of 18 June 2025 is set out in full as follows: We received your email with the Notice under Section 19(2) of the [SOP Act] on Monday 16 June 2025. There is no disagreement regarding [the first defendant’s] right to make a progress payment claim, however [the plaintiff] is still waiting on [the first defendant] to make the progress claim as all previous progress claims that have been entered and submitted by [the first defendant] by the Payapps system as per clauses 14.3(c)(i) and (ii). [The first defendant] has made all previous claims, for both demolition and bulk excavation/piling through the Payapps system (as per Item 21 requirements of the contract 23039004), a total of 15 claims. The claim 10 for the bulk excavation was sent to Jordan Wind on 19 May 2025 as an email. Michael Hodge was advised via email by me, that the claim needed to be claimed through Payapps on 22 of May 2025. As I did not receive any receipt or recognition from Michael regarding the email I phoned Michael and spoke to him on 27 May 2025 at 11:38am requesting the claim be entered through Payapps as per all other previous claims. Michael advised he had sent the information to [the first defendant’s] accounts and would contact them on the 27 of May 2025 to make sure they enter the claim. There was no communication or progress claim forthcoming from that date. The contact details on the claim are incorrect, [the plaintiff] does not have a presence at Level 2, 121 Marcus Clarke Street, Canberra City ACT 2601 nor are the contact numbers on the claim correct for [the plaintiff]. The variations claimed have been previously rejected on numerous occasions. VO2 has been previously rejected in each of the previous 5 claims and VO5 rejected in 4 successive claims. These rejections have been detailed and explained in person with [the first defendant’s] personnel and via the Payapps system. Vos 6, 7 and 8 were previously rejected in claim 8 and again in claim 9 through Payapps. VO’s 4, 9, 10, 12, 13 and 14 have all been approved and paid in full or partially paid (VO10). VO 1 has not been received previous to this claim 10. VO11 and the balance of VO10 are yet to be claimed. The claim that was sent through to [the plaintiff] via email was missing all the compliance documents required to make a claim. The Weekly Site Monitoring Meetings and Toolbox Talks were not received. Back up documentation for the variations were not provided the final statement/Deed of Release were not received for the finalization of the project works. During the course of these project works the relationship between [the first defendant] and [the plaintiff] has been very open and honest, therefore it is disappointing to be unable to resolve these issues with open communication between all parties. Please contact Jordan Wind as soon as possible to discuss this issue so we may find resolution.
Ground 1: Was there a failure to consider matters required to be considered by s 24(2) of the SOP Act?
That question must be answered negatively for the reasons that follow.
The plaintiff contends that the second defendant failed to properly consider the material placed before him, namely the submissions made by the first defendant in bringing the adjudication claim and the construction contract. The plaintiff says that this failure to consider is evidenced by errors in the second defendant’s reasons as to the characterisation of the nature of the claim and failure to make reference to relevant provisions of the construction contract.
In response, the first defendant asserts that the second defendant was not required to undertake a merits review of the first defendant’s claim, and that any omissions or errors made by the second defendant as disclosed by his reasons are insufficient to draw an inference that the second defendant failed to consider the material put before him.
In circumstances where the purported payment schedule provided by the plaintiff was not in fact a valid payment schedule, and the plaintiff was therefore not entitled to submit an adjudication response, s 24(2) only required the second defendant to consider the construction contract, the first defendant’s payment claim and submissions in support of the claim, the adjudication application and the contents of the SOP Act.
For the plaintiff to demonstrate the second defendant had fallen into jurisdictional error, it was required to show that it could be inferred the second defendant had not had sufficient regard to the material which he was required to consider, and not merely that, by his reasons, he had failed to understand the import of that material.
The second defendant, by his reasons, appears to have misunderstood the nature of the first defendant’s submissions and has not referred to certain contractual provisions in dispute. As noted by the plaintiff, he failed to identify that the dispute concerned the first defendant’s entitlement to payments for variation of work and to retention monies, rather than a claim for carrying out works and services already specified in the contract. However, this failure does not necessarily disclose a failure to consider matters rising to the level of jurisdictional error. Consideration is a private mental process, some of which may be disclosed or inferred from the provision of reasons. As correctly submitted by counsel for the first defendant in oral submissions, this Court’s task in undertaking a review of the second defendant’s decision for jurisdictional error, does not allow for it to speculate as to what was in the second defendant’s mind at the time of his adjudication.
Relevantly, Payne JA stated in Ceerose at [68]: Often it will be equally likely that an adjudicator who does not refer in reasons to a particular matter mistook the facts or misunderstood the contractual provision or the legal principle to be applied, as that he or she did not consider the factor at all. In those circumstances, a complaint of failure to consider will not be proven.
Was there jurisdictional error?
Concluding remarks
Although not ultimately determinative of the plaintiff’s claim, I return to the alternative avenue available for a challenge to the decision of the adjudicator; that is, an appeal by way of judicial review available under s 43 of the SOP Act. In Re Carey; ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; 32 WAR 501, a decision of the Court of Appeal of Western Australia, Martin CJ expressed the view that relief from the order of a tribunal by way of prerogative relief should be actively discouraged where the legislature has provided a specific statutory right of appeal. His Honour stated at [6]: In my view, the use of prerogative remedies to challenge decisions of the Tribunal is a course of action which this Court should actively discourage. The legislature has provided a specific right of appeal to this Court from decisions of the Tribunal. Prerogative relief should only be sought instead of exercising that right in the most exceptional circumstances.
I consider those words apposite in the present case, where the plaintiff might have had recourse to the specific statutory right of appeal envisioned by the SOP Act under s 43, but chose not to exercise its right in favour of pursuing a prerogative remedy in the nature of certiorari. Had the plaintiff exercised its right of appeal, there would be no need to address the question of whether identified errors of law were jurisdictional in nature. It would also be open for the Court, if the plaintiff’s appeal were successful, to substitute the orders of the Tribunal with its own orders, rather than making the only order available under a successful application for certiorari simpliciter, being remittal of the matter for reconsideration.
Orders
I certify that the preceding one hundred and twenty-six [126] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date:
TP Dynamics (ACT) Pty Ltd
G&H Plant Hire Pty Ltd [2026] ACTSC 15
(1995) 184 CLR 163
(1987) 163 CLR 329
(1968) 119 CLR 222
(2002) 209 CLR 597
In seeking that the adjudication decision made by the second defendant be declared void or quashed by reason of jurisdictional error, the plaintiff seeks relief that is to the same effect as a writ of certiorari. An error of law that is non-jurisdictional would, in usual circumstances, fall short of establishing an entitlement to a prerogative order.
An alternative remedy may have been available to the plaintiff, but is not pursued in this instance. The decision of the second defendant was made pursuant to the SOP Act. Section 43 of the SOP Act states: 43 Judicial review of adjudication decision (1) Except as provided for in this part, a court does not have jurisdiction to set aside or remit an adjudication decision on the ground of error of fact or law on the face of the decision. (2) An appeal may be made to the Supreme Court on any question of law arising out of an adjudication decision. (3) An appeal under subsection (2) may be brought by any of the parties to an adjudication decision— (a) with the consent of the parties to the decision; or (b) with the leave of the Supreme Court. (4) The Supreme Court must not grant leave under subsection (3) (b) unless it considers that— (a) having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of 1 or more parties to the adjudication decision; and (b) there is— (i) a manifest error of law on the face of the adjudication decision; or (ii) strong evidence that the adjudicator made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of the law. (5) The Supreme Court may make any leave which it grants under subsection (3) (b) subject to the applicant complying with any conditions it considers appropriate. (6) On the determination of an appeal under subsection (2) the Supreme Court may by order— (a) confirm, amend or set aside the adjudication decision; or (b) remit the adjudication decision, together with the Supreme Court’s opinion on the question of law which was the subject of the appeal, to— (i) the adjudicator for reconsideration; or (ii) if a new adjudicator is appointed by the Supreme Court—to that adjudicator for consideration. (7) If an adjudication decision is remitted under subsection (6) (b) the adjudicator must make the new adjudication decision— (a) within 10 business days after the day the decision was remitted; or (b) within the time directed by the Supreme Court. (8) If the adjudication decision of an adjudicator is amended on an appeal under subsection (2), the adjudication decision as amended has effect as if it were the adjudication decision of the adjudicator.
An appeal from an adjudication decision is available under s 43, with the consent of the parties to the decision or the leave of the court. Leave may only be granted where there is a manifest error of law on the face of the decision, or strong evidence that the adjudicator made an error of law and the determination of the question may add, or may be likely to add, substantially to the certainty of the law. An appeal pursuant to s 43 of the SOP Act is not pursued here.
In the absence of any dispute from the parties concerning the power to make a prerogative order in these circumstances, and bolstered by the NSW authorities to which I have made reference, I have proceeded on the basis that the power in s 34B of the Supreme Court Act to grant relief by way of prerogative order extends to a grant of relief in respect of the adjudication decision.
The plaintiff contends that, by his reasons, the second defendant failed to have regard to the relevant clauses of the contract, and failed to consider whether a particular clause was void by operation of s 14 of the SOP Act, as contended by the first defendant in relation to the claim for retention monies. Accordingly, the second defendant’s adjudication fell into jurisdictional error.
The plaintiff ultimately submits that the second defendant’s failure to allow the plaintiff to make submissions before making his adjudication was a breach of natural justice, and that the determination is therefore void for jurisdictional error.
The plaintiff submits that the other requirements of s 16 were met by the purported payment schedule and email, and are not in issue.
On the matter of the statutory limitations upon the material an adjudicator may consider, Ceerose was referred to with approval in the recent ACT Court of Appeal judgment in WNA Construction Pty Ltd v Canberra Building and Maintenance Pty Ltd [2025] ACTCA 17 at [112].
The first defendant submits that, in light of Ceerose, there was no requirement of the second defendant to undertake a merits review of the adjudication claim. The second defendant was required to decide on the three matters set out in s 24(1), and to only have regard to the materials set out in s 24(2). Having done so, the second defendant was not required to go further in reviewing the merits of the claim.
The first defendant also submits, relying on Ceerose, that the second defendant was not required to give exhaustive or comprehensive reasons. The first defendant says that the scope of the reasons which the second defendant was required to give were set by the “metes and bones” of the dispute before him, which were significantly limited by the statutory framework set out by the SOP Act. The first defendant contends that it was not surprising that the second defendant’s reasons were brief and succinct. This is especially so in circumstances where, the first defendant says, the plaintiff’s purported payment schedule and adjudication response could not be put before the second defendant because no valid payment schedule had been provided to the first defendant.
The first defendant further contends that, in light of its submission in relation to ground 3 (discussed later at [52]-[63]) that the plaintiff did not provide a valid payment schedule to the first defendant, there was no obligation arising for the adjudicator to consider the complete submissions of the first defendant and the plaintiff.
Section 69(b) of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (Qld SOP Act), the Queensland equivalent of the NSW SOP Act and the ACT SOP Act, also adopts the term “state”. In the Queensland Supreme Court judgment in Melaleuca View Pty Ltd v Sutton Constructions Pty Ltd [2019] QSC 226 at [48], in comparing the operation of the NSW SOP Act and the Qld SOP Act, Brown J considered that: The present Act uses the term “state” rather than “indicates”, suggesting a greater level of detail in the reasons is required than under the New South Wales legislation.
With this background, the first defendant submits that the plaintiff’s email did not constitute a payment schedule for the purposes of s 16(2) on three grounds. First, the first defendant contends that the wording of s 16(2)(b) does not invite inferential reasoning, because the term “state” requires the payment schedule to make a “positive representation” of the amount of payment proposed. The first defendant argues that the plaintiff’s email did not provide an explicit statement of the dollar amount proposed to be paid or alternatively, indicate that nothing would be paid.
Second, the first defendant submits that a contrary inference should be drawn from the plaintiff’s email that the plaintiff may have intended to make a payment. The plaintiff’s email concludes by stating: Please contact Jordan Wind as soon as possible to discuss this issue so we may find resolution.
The first defendant submits that this may be construed to be the start of a “negotiation” between the plaintiff and first defendant, with the possibility that an amount might be paid.
The first defendant also refers to the plaintiff making a payment of $475,041.83 to the first defendant in respect of the contract on 1 July 2025, pursuant to construction works claimed within the subject payment claim. The first defendant submits that this payment is demonstrative of the plaintiff’s intention to make some sort of payment, and shows that the plaintiff had not rejected the first defendant’s payment claim.
Third, the first defendant concedes that the requirement under s 16(2)(a) is satisfied, in that the plaintiff’s purported payment schedule identifies the payment claim to which it relates. However, it contends that the other requirement under s 16(3), that the plaintiff provide reasons for withholding payment, could not be considered by the second defendant because satisfaction of s 16(2) is a threshold requirement before the requirements of s 16(3) can properly be considered.
The first defendant notes that s 16(1) provides that a respondent to a payment claim “may” reply to the claim by providing a payment schedule, indicating that there is no mandatory requirement for a respondent to reply to a payment claim. Section 16(2) then specifies that a payment schedule must identify the payment claim to which it relates, and state the amount of payment, if any, the respondent proposes to make. Section 16(3) imposes requirements if the scheduled amount is less than the claimed amount. The first defendant submits that the operation of subs 16(1)-(3) calls for consideration of subs 16(1)-(2) before any consideration of sub 16(3). The first defendant argues that the second defendant, and this Court, is not required to consider the application of s 16(3) in circumstances where the plaintiff’s email had not satisfied the prerequisite of stating the amount of payment the plaintiff proposed to make.
The proposition advanced by the plaintiff is that s 23(1) of the SOP Act gives the respondent to an adjudication application an entitlement to respond, as long as the response is provided within the time period fixed by s 23(2), which in turn refers to the time period in s 22(1). To deliver a decision prior to the expiry of that time period and without regard to submissions lodged by the respondent within the time period prescribed by s 22(1), albeit after the date of delivery of the adjudicator’s decision, constitutes a denial of natural justice.
The plaintiff disputes the proposition advanced by the first defendant that in this case s 22(3) overrides the entitlement to provide a response, because of the failure to provide a payment schedule. It points to the prospect that in many cases (as here) there may be a dispute about the validity or otherwise of the payment schedule which is of itself a matter about which the adjudicator should receive submissions from the parties. The plaintiff also notes that ss 23(1) and 23(2) are not expressed as being “subject to s 23(3)”. In this regard, the plaintiff relies upon the decisions in Emag and Brodyn.
The relevant facts in Emag were as follows. The defendant in that case served a payment claim under the NSW SOP Act on the plaintiff. The plaintiff initially failed to provide a payment schedule in response but later issued a schedule which reduced the amount claimed to “$Nil”. The defendant then applied for adjudication of the payment claim on 3 June 2003. The central issue in Emag involved whether the defendant’s adjudication application was properly served on the plaintiff, in circumstances where the document was first delivered to the plaintiff’s solicitors on 4 June 2003, but the plaintiff argued its solicitors had no authority to accept service. The application was eventually served on the plaintiff itself on 12 June 2003, some eight days later. The date on which proper service was effected would impact the date by which the plaintiff was entitled to respond to the adjudication application, being five business days after the application was properly served. The adjudicator treated service as effective on the day the application was provided to the plaintiff’s solicitors, and sent a communication to the plaintiff with an assertion to that effect on 16 June 2003. An adjudication determination was subsequently issued on 19 June 2003.
Einstein J found that the adjudicator in Emag was clearly in error as to the time frames applying to the provision of an adjudication response. The adjudicator’s direction to Emag, prior to the expiry of the relevant period, that it had failed to provide a timely adjudication response, had the effect of misleading and impeding Emag in terms of its “proper entitlement” to provide an adjudication response. His Honour went on to find that the timing of the adjudicator’s decision was contrary to the NSW equivalent of s 23(1) of the ACT SOP Act. His Honour said: • in any event Section 21 (1) of the [NSW SOP] Act expressly prohibited the adjudicator from determining the adjudication application until after the end of the period within which Emag might lodge an adjudication response. But the adjudicator actually determined the adjudication application on the last of the days upon which that adjudication response might have been lodged; and • this vitiates the validity of the adjudicator's determination.
Importantly, while his Honour found that the erroneous timing of the adjudicator’s decision impaired the quality of the decision making, that factor was not determinative of the Court’s review of the decision.
In Brodyn, the appellant entered into a contract with the respondent for the respondent to undertake concreting work in November 2002. The respondent submitted a series of progress claims between December 2002 and May 2003, in response to which the appellant made payments. On 13 June 2003, the appellant sent the respondent a notice alleging the respondent had repudiated the contract, and purported to accept the repudiation as termination of the contract. In September 2003, the respondent served on the appellant a document which it said was a payment claim under the NSW SOP Act. The appellant responded with a document it described as a payment schedule, in which it contended there were no further rights to progress payments and consequently denying that the respondent had served a valid payment claim. The respondent subsequently applied for adjudication in relation to its purported payment claim in October 2003. After receiving an adjudication response from the appellant, the adjudicator found in favour of the respondent and determined that the appellant owed a sum as progress payment to the respondent.
The appellant sought judicial review of the adjudicator’s decision by way of certiorari to quash the adjudicator’s determination, but was unsuccessful at first instance before the primary judge. On appeal to the NSW Court of Appeal, the appellant sought to argue that the September payment claim was invalid because the contract between the parties had been terminated, and the adjudicator had failed to deal with a number of the appellant’s submissions in its adjudication response, such that the adjudicator fell into jurisdictional error because of a denial of natural justice.
The critical passage in Brodyn upon which reliance is placed by the plaintiff in the present case, commences at [55]. The NSW Court of Appeal there recognised that the provisions governing the adjudication process itself clearly confirm an intent that natural justice is to be afforded to the extent provided by those provisions. That much can be seen, for example, from the entitlement given to a responding party to first provide a payment schedule in response to a payment claim, setting out certain basic information in response to the payment claim, then subsequently, having completed a payment schedule, to provide a more fulsome response to the payment claim for the adjudicator’s consideration before a decision is made. The words used by Hodgson JA at [57] are instructive: The circumstance that the legislation requires notice to the respondent and an opportunity to the respondent to make submissions (ss.17(1) and (2), 20, 21(1), 22(2)(d)) confirms that natural justice is to be afforded to the extent contemplated by these provisions; and in my opinion, such is the importance generally of natural justice that one can infer a legislative intention that this is essential to validity, so that if there is a failure by the adjudicator to receive and consider submissions, occasioned by breach of these provisions, the determination will be a nullity.
His Honour recognised that there is a natural justice component afforded to the parties by the provisions determining the adjudication process that renders an adjudication decision made contrary to those provisions a nullity. However, the critical words are, “to the extent contemplated by these provisions”. The natural justice component is limited by the provisions themselves and is not, as the plaintiff suggests, an entitlement at large existing for the benefit of the parties independent of those provisions. The provisions themselves limit the entitlement to make an adjudication response to the circumstances contemplated by s 22(3), which were not satisfied in this case.
I therefore do not accept the plaintiff’s submission that the second defendant’s failure to consider the plaintiff’s adjudication response is of itself, and without more, a denial of natural justice that renders the adjudication decision void. My interpretation of the limits that the SOP Act places on natural justice considerations is reinforced by the structure of the scheme, which does not deny a party subject to it access to its common law rights in respect of any matter of dispute. As the majority stated in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; 264 CLR 1 at [44]:
The plaintiff emphasises that a payment schedule is not intended to be “a strict legal document drafted by lawyers”. It notes that the only requirement prospectively not met was the requirement to state the payment, if any, that the plaintiff proposed to make. In that regard, the plaintiff submits that it is clear from the words used that the plaintiff did not intend to make any payment. That much is apparent from its invitation to the first defendant to resubmit the claim.
The document otherwise identifies the payment claim to which it relates and provides the plaintiff’s reasons for withholding payment. The document raises a question as to whether a progress claim has in fact been made as it has not been submitted on the “Payapps” system. I note that the matter proceeds before me on the basis that the payment claim is valid.
The critical question is whether the plaintiff has done enough in the document to satisfy the requirement that it state the amount of payment, if any, that it proposes to make.
Dealing first with the significance of the use of the word “state” as opposed to “indicate”, the second defendant reasoned as follows at pars 11-12: 11. I am not aware of any ACT case law directly on this point, though I acknowledge the [first defendant’s] helpful reference to the High Court’s analysis of “to state” in State Chamber of Commerce and Industry v The Commonwealth (1987) 163 CLR 329. 12. Having considered the issue, I agree with the [first defendant’s] analysis: the [plaintiff’s] email of 18 June 2025 is not a payment schedule in that it fails to state the amount of the payment (if any) the [plaintiff] proposes to make. Accordingly, I may not consider any of the reasons raised in it. This approach promotes certainty and aligns with the policy behind the [SOP] Act.
It is unclear as to how the second defendant gained any meaningful assistance from the cited decision. I do not accept that any distinction of significance arises as a consequence of the use of the word “state” in the ACT legislation as opposed to the use of the word “indicate” in a number of the comparable schemes. The word “indicate”, as defined in the Macquarie Dictionary, may mean “to point out or point to”; “direct attention to”; “to show, or make known”; or “to state or express, especially briefly or in a general way”.
As to the limits reasonably placed on the use of dictionary definitions, Leeming JA (with whom Basten and Meagher JJA agreed) observed in South Western Sydney Local Health District v Gould [2018] NSWCA 69; 97 NSWLR 513 at [79]: A dictionary will give a range of meanings of a word. The task of a court is to identify, from text, context and purpose, the particular meaning that a statutory provision bears. The function of a dictionary and the function performed by a court construing a statute are utterly different. It must be borne in mind that the meaning of any word used in a statute depends on the context and purpose of the legislation in which it appears. (Citation omitted, emphasis in original.) With due regard to the virtually identical purpose of the schemes comprised in each of the ACT and NSW SOP Acts, I am not satisfied that anything of real moment arises from the use of the word “state” as opposed to the word “indicate”. The issue of significance, it seems to me, is whether the communication does enough to make clear to the receiving party that which is intended in terms of a payment. I do not accept, as the second defendant contends in his reasons, that there is an obligation to specify a dollar amount to satisfy the requirement. There would be no less certainty, for example, in a payment schedule that expressed the amount to be paid in terms of a percentage of the amount allowed for in the payment claim. The obligation is to convey that which is intended in terms of payment with sufficient clarity for the receiving party to understand that which is intended. The plaintiff referred to a number of authorities on this issue in its submissions, some of which are summarised below.
In Luikens, Palmer J considered whether a payment schedule adequately set out the reasons for withholding payment. In doing so, his Honour set out a context-based approach to interpreting the validity of a payment schedule, noting that payment claims and payment schedules are usually exchanged between parties who are experienced in the building industry, are familiar with the history and progress of the project to which payment is in dispute, and may communicate in an abbreviated form which can be understood readily by the parties but is unintelligible to an uninformed reader. Accordingly, it is not necessary for a payment schedule to be especially precise and particularised; however, precision and particularity must be required to the extent reasonably sufficient to apprise both parties of the real issues in dispute. His Honour considered that cryptic or vague statements in a payment schedule were to be avoided, to the extent that such statements might give rise to misunderstandings in meaning between the parties.
Palmer J’s approach was referred to with approval by the NSW Court of Appeal in Clarence Street Pty Ltd v Isis Projects Pty Ltd [2005] NSWCA 391; 64 NSWLR 448 (albeit concerning the validity of a payment claim rather than a payment schedule), and the Victorian Court of Appeal in Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247 (Façade). In Façade, the Court of Appeal placed emphasis on the respondent in that case indicating it would “be in a position” to issue a payment schedule once certain issues had been addressed, as indicating that the respondent was not currently in this position, and that no payment was forthcoming.
In Barclay Mowlem Construction Ltd v Tesrol Walsh Bay [2004] NSWSC 716, McDougall J considered that Luikens provided the correct approach to dealing with the validity of a purported payment schedule. His Honour stated that the question of entitlement to progress payments should be resolved “expeditiously … with a minimum of formality and expense” and approached in a practical manner. His Honour found “nothing”, “nil” or “zero” to be a valid indication of amount.
In Minimax, Chesterman J stated that the purpose of a payment schedule is to “identify what amounts are in dispute and why”, and to set out the parameters of a dispute about payment at an early stage for adjudication. While no particular form or formality is required to satisfy the statutory description of a payment schedule, his Honour noted that there must be a clear statement identifying whether the issuer of the payment schedule objects to paying the claimed amount. In that case, although the correspondence identified as the applicant’s payment schedule did not specify a dollar amount to be paid, his Honour was satisfied the correspondence clearly stated that the applicant did not propose to make any payment.
In Denham Constructions Pty Ltd v Islamic Republic of Pakistan (No 2) [2016] ACTSC 215, Mossop AsJ (as his Honour then was) followed the approach in Minimax in interpreting the validity of a payment claim, and observed that a payment claim could impliedly, rather than expressly, state the amount of payment proposed.
Returning to the facts of this case, there is very real difficulty in gleaning from the words used by the plaintiff a statement of intent as to payment. Counsel for the plaintiff submits: So in my submission, your Honour standing in the shoes of the first defendant, a reasonable party in the shoes of the first defendant receiving this communication would understand or reasonably understand that my client did not propose to make a payment in response to the payment claim mainly because it's clear from the communication that it didn't treat as a valid payment claim for a range of different reasons.
I disagree. What is clear is that the plaintiff was seeking further information before it was willing to progress the payment claim. It even proposed a mechanism for securing that further information. The plaintiff made clear its wish that the claim would be submitted through the Payapps system, as previous claims had been submitted. Those things were all made clear. But the communication did not evince an intention one way or another as to the making of a payment in response to the payment claim.
I am not satisfied that the email communication of 18 June 2025 met the requirements of a payment schedule within the meaning of the SOP Act, as it failed to inform the recipient, expressly or by implication, whether a payment was to be made and if so, the amount of the payment that was proposed.
The second defendant’s reasons do not disclose a failure to consider those arguments or the contract, in circumstances where the adjudicator has made reference to the contents of the first defendant’s submissions (albeit with some errors) and to certain provisions of the contract. At most, the reasons disclose a misunderstanding of the arguments advanced by the submissions of the first defendant and the nature of the contractual provisions subject to dispute. Such an error is non-jurisdictional in nature, and therefore not susceptible to review in the nature of certiorari. It cannot be inferred, beyond mere speculation, that the second defendant’s errors were a result of a failure to consider material.
Similarly, that the second defendant’s reasons were brief and did not address every issue raised by the first defendant’s adjudication application does not, of itself, disclose a jurisdictional error by way of failure to consider. As correctly identified by the plaintiff and as stated in Ceerose, a failure to address a submission will only rise to the level of jurisdictional error where the submission concerned a “centrally important matter”, clearly articulated and based on uncontested facts. As expressed in Ceerose, it is rare that a case of this sort will arise. This is particularly so where the respondent to the adjudication claim was not entitled to submit an adjudication response, which may have clarified the scope of the issues in contention.
An important aspect of the Court’s analysis in Ceerose was its consideration of the dicta in [52] of Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd [2005] NSWCA 228; 63 NSWLR 385, where Hodgson JA stated: The task of the adjudicator is to determine the amount of the progress payment to be paid by the respondent to the claimant; and in my opinion that requires determination, on the material available to the adjudicator and to the best of the adjudicator’s ability, of the amount that is properly payable. Section 22(2) [of the NSW SOP Act] says that the adjudicator is to consider only the provisions of the Act and the contract, the payment claim and the claimant’s submissions duly made, the payment schedule and the respondent’s submissions duly made, and the results of any inspection; but that does not mean that the consideration of the provisions of the Act and the contract and of the merits of the payment claim is limited to issues actually raised by submissions duly made: see The Minister for Commerce v. Contrax Plumbing (NSW) Pty. Ltd. [2005] NSWCA 142 at [33]-[36]. The adjudicator’s duty is to come to a view as to what is properly payable, on what the adjudicator considers to be the true construction of the contract and the Act and the true merits of the claim. The adjudicator may very readily find in favour of the claimant on the merits of the claim if no relevant material is put by the respondent; but the absence of such material does not mean that the adjudicator can simply award the amount of the claim without any addressing of its merits. The Court in Ceerose noted (at [80]) that Hodgson JA’s dicta, as interpreted and applied in a number of subsequent decisions, would have the effect that in the absence of any reason advanced by the recipient of a claim for why a payment should not be made, an adjudicator would nevertheless be obliged to investigate and give written reasons for a conclusion about the true merits of the claim lest they fall into jurisdictional error. The Court rejected that interpretation of the adjudicator’s obligation. Payne JA continued at [82] (dealing with the equivalent to s 24 of the ACT SOP Act): Section 22(1) [of the NSW SOP Act] does not create a free-standing jurisdictional obligation to consider the merits of a payment claim, and in particular whether the construction work identified in the payment claim has been carried out, and what is its value. The only matters an adjudicator is required to consider in determining an adjudication application are set out in s 22(2). … [T]here are likely to be few cases in which an applicant for judicial review can establish a breach of the duty to consider the matters set out in s 22(2). Only sometimes is a failure to refer to relevant material evidence of a failure to refer to a mandatory relevant consideration. A fortiori, where there is no relevant material before the adjudicator, it cannot be a jurisdictional error to fail to refer to it. Paragraph [52] of Hargreaves, insofar as subsequent cases have understood that it suggests that s 22(1) provides a free-standing jurisdictional obligation to consider the merits of a payment claim, and in particular whether the construction work identified in the payment claim has been carried out, and what is its value, is not correct and should not be followed.
This ground is not made out.