York Property Holdings Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd & Ors [2025] QSC 286

Uniform Civil Procedure Rules 1999 (Qld) r 483(1)

ABC Glass & Aluminium Pty Ltd v Nik Nominees Pty Ltd [2019] QSC 171

A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2024] NSWCA 7

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

Allianz Australia Limited v Delor Vue Apartments CTS 39788 [2022] HCA 38; (2022) 277 CLR 445

Bhusal v Catholic Health Care [2017] NSWSC 838

Brolton Group Pty Ltd v Hanson Construction Materials Pty Ltd [2020] NSWCA 63

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

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

City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135

Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd [2005] NSWCA 228

Demex Pty Ltd v McNab Building Services Pty Ltd [2023] NSWCA 261; (2023) 113 NSWLR 282

Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3) [2012] VSC 99

EQ Constructions Pty Ltd v A-Civil Aust Pty Ltd [2021] NSWSC 1604

Forme Two Pty Ltd v McNab Developments (Qld) Pty Ltd [2025] QSC 96

Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339

JKC Australia LNG Pty Ltd v Inpex Operations Australia Pty Ltd [2018] NTCA 6; (2018) 334 FLR 314

John Goss Projects Pty Ltd v Leighton Contractors Pty Ltd (2006) 66 NSWLR 707

John Holland Pty Ltd v TAC Pacific Pty Ltd [2009] QSC 205; [2010] 1 Qd R 302

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

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

Low v MCC Pty Ltd [2018] QSC 6s

LPDT v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152

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

Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140

Musico v Davenport [2003] NSWSC 977

National Management Group Pty Ltd v Biriel Industries Pty Ltd (t/a Master Steel) [2019] QSC 219

Patrick Stevedores Operations (No 2) Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2014] NSWSC 1413

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

Rhomberg Rail Australia Pty Ltd v Concrete Evidence Pty Ltd [2019] NSWSC 755

Saville (T/as China Sourcing Services) v Hallmarc Construction Pty Ltd [2015] VSCA 318; (2015) 47 VR 177

SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2020] QSC 307

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

TWT Property Group Pty Ltd v Cenric Group Pty Ltd [2020] NSWSC 72

Watkins Contracting Pty Ltd v Hyatt Ground Engineering Pty Ltd [2018] QSC 065

Westbourne Grammar School v Gemcan Constructions Pty Ltd [2017] VSC 645

York Property Holdings Pty Ltd v Tomkins [2025] QSC 44

D Piggott KC, and J Menzies, for the First Respondent

• [1] The applicant, York Property Holdings Pty Ltd ("York"), is the principal under a contract whereby the first respondent, Tomkins Commercial & Industrial Builders Pty Ltd & Ors ("Tomkins"),[1] as contractor, undertook to carry out works for the development of "Midwater", a 40-storey residential apartment building at Main Beach, Queensland.
• [2] This dispute centres around Tomkins' termination of the Contract on 10 September 2024 following a breach by York. Tomkins' position is that the termination was valid and, therefore, that there was a reference date under s 67(2) of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) ("BIF Act").
• [3] York's position is that Tomkins' termination was invalid, and the Contract remained on foot. Accordingly, on this basis, York served on Tomkins a notice under cl 39.4 of the Contract on 12 September 2024 purporting to take the work out of Tomkins' hands. The effect of this was Tomkins' right to payment was suspended, meaning that there was no reference date for a payment claim.
• [4] On 16 October 2024, Tomkins submitted "Payment Claim 36", based on the date of termination (12 September 2024), being a reference date under s 67(2) of the BIF Act.
• [5] Tomkins claimed $57,547,356.41 (including GST) in respect of work up to the reference date of 10 September 2024. The claim was styled as the "Final Payment Claim" and served both as a progress claim made under cl 37.1 of the General Conditions of Contract and a payment claim made under the BIF Act.
• [6] In response, York served a payment schedule on 30 October 2024 stating that no amount was payable to Tomkins.
• [7] Tomkins' adjudication application was lodged with the adjudicator, on or about 11 December 2024, with York's adjudication response being lodged on 17 February 2025.
• [8] On 28 April 2025, the second respondent (the adjudicator) provided reasons which required York to pay Tomkins $10 million.
• [9] By Originating Application, York seeks declarations that the Adjudication Decision is affected by jurisdictional error and void with consequential injunctive relief. Tomkins' position is that York's application should be dismissed.
• [10] The issues in dispute in the Originating Application are:

(a) whether the existence of a reference date is an objective or subjective jurisdictional fact. If the jurisdictional fact is:

(i) objective, the Court must decide whether the reference date of 10 September 2024 existed. This question is determined by the Court upon the evidence before it, without being limited to the probative material before the adjudicator; or

(ii) subjective, the Court must decide whether the adjudicator arrived at the required state of mind in the way contemplated by the legislature.

(b) in relation to the adjudicator's finding about waiver, whether York was denied procedural fairness in respect of the adjudicator's alleged reliance upon Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 [2022] HCA 38; (2022) 277 CLR 445 ("Allianz").

(c) in relation to Tomkins' entitlement to claim for unfixed materials, whether York was denied procedural fairness in relation to a so-called finding that its letter of 30 August 2024 was a variation under the Contract.

(d) in relation to termination costs, whether the adjudicator made a jurisdictional error in finding that Tomkins was entitled to certain termination costs.

• [11] The hearing commenced on 30 May 2025, and York's counsel completed their oral submissions just prior to lunch. Then, matters took a different turn.
• [12] Despite these proceedings being on foot for some time, and with written submissions being exchanged as to the issues to be determined, over the lunch break, Tomkins' counsel appreciated the practical consequences of a finding (being sought by York) that the existence of a reference date was an objective jurisdictional fact.
• [13] If the jurisdictional fact is objective, the Court is to decide de novo whether Tomkins validly terminated the contract on 10 September 2024 which would require the Court to resolve various questions of fact and law. Tomkins states that, in such circumstances, they would raise further matters that were not canvassed by their existing written submissions.
• [14] Accordingly, when Court resumed after lunch, Tomkins sought an adjournment for the parties to consider how, and in what form, the proceedings should continue. Ultimately, the parties consented to the adjournment.

• [15] On 4 August 2025, I determined that the most efficient approach, in the circumstances, was for the Court to make an order under r 483(1) of the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR") that separate questions be decided before the remaining questions in the proceeding.
• [16] The parties agreed on the terms of the following separate questions to be considered by the Court:

(a) Separate question 1: Is the applicant entitled to the relief claimed in paragraph 2 of the Originating Application?

(b) Separate question 2: Was the existence of a reference date for Payment Claim 36 by reason of the operation of s 67(2) of the BIF Act a "subjective jurisdictional fact" or an "objective jurisdictional fact"?

(c) Separate question 3: If the answer to separate question 2 is a "subjective jurisdictional fact", is the applicant entitled to the relief claimed in paragraph 1 of the Originating Application?

(d) Separate question 4: Did the adjudicator's reference to Allianz deny the applicant procedural fairness?

(e) Separate question 5: If the answer to separate question 4 is "yes", was it a material denial of procedural fairness?

• [17] The remaining questions, which were adjourned, are those which would only arise if the Court were to decide that the validity of the termination is an objective jurisdictional fact.
• [18] On 8 August 2025, I heard submissions from the parties addressing each of the five separate questions and it became apparent that the questions should be considered in the following order:

(a) Separate Question 4

(b) Separate Question 5

(c) Separate Question 1

(d) Separate Question 2

(e) Separate Question 3.

• [19] I consider each of the questions in turn below.

Separate Question 4: Did the adjudicator's reference to Allianz deny the applicant procedural fairness?

• [20] In submissions before the adjudicator, the parties addressed whether York had waived any rights in a notice to show cause ("Tomkins' Notice") that Tomkins gave York on 21 August 2024.
• [21] In his reasons, the adjudicator, when considering this issue, referred to the case of Allianz. However_,_ neither party had referred to this case in their submissions to the adjudicator. Accordingly, York submits that they have been denied procedural fairness.
• [22] The Contract prescribes the following in relation to relation to show cause notices:

If the Principal commits a substantial breach of the Contract, the Contractor may, by hand or by certified post, give the Principal a written notice to show cause....

1. that the Principal is required to show cause in writing why the Contractor should not exercise a right referred to in subclause 39.9;

d) the date and time by which the Principal must show cause (which will not be less than 7 day clear days after the notice is received by the Principal); ...

If the Principal fails to show reasonable cause by the stated date and time, the Contractor may, by written notice to the Principal suspend the whole or any part of the WUC.

The Contractor may, by written notice to the Principal, terminate the Contract, if within 7 days of the date of suspension under this subclause, the Principal fails to:

b) if the breach is not capable of remedy, to make other arrangements to the reasonable satisfaction of the Contractor.

Damages suffered by the Contractor by reason of the suspension will be assessed by the Superintendent, who will certify them as moneys due and payable to the Contractor (emphasis added)."

• [23] In relation to the Tomkins notice, the earliest that Tomkins could have required York to show cause (to comply with the 7 clear day requirement in cl 39.8(d)) was sometime on 29 August 2024.
• [24] However, York was only given until 28 August 2024 to show cause.
• [25] York's position is that Tomkins' notice did not comply with cl 39.8(d) and therefore was invalid and consequently:

(a) any subsequent suspension by Tomkins based on the invalid show cause notice would be a wrongful suspension; and

(b) in turn, any subsequent termination would be unlawful.

• [26] Whilst York responded within the stated date and time as set out in the Notice, York made it clear in their response that any suspension based on the Notice would constitute a wrongful suspension (which itself would amount to a substantial breach of the Contract).
• [27] Tomkins subsequently suspended the works under contract ("WUC") and, later, purported to terminate the Contract pursuant to cl. 39.9.
• [28] In response, York gave Tomkins a notice to show cause ("the York Notice") on the basis that it had wrongfully suspended the WUC. When Tomkins failed to show cause, York took the remaining WUC out of Tomkins' hands and suspended payment in accordance with cl 39.4.
• [29] Tomkins submitted to the adjudicator that, as York had responded to their Notice, York had waived any right it may have had ("the waiver issue"). Tomkins relied on Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No. 3) [2012] VSC 99 ("Dura") and submitted that:

(a) if York had objected to the allegedly incorrect specified time frame before responding, then Tomkins could have re-served the notice; and

(b) York's failure to do so amounted to a waiver of the same type in Dura.

• [30] York responded to these submissions and stated that Dura was not relevant to the circumstances of this case, as it did not provide any authority for the position that the requirement for strict compliance with the Contract for a valid notice to show cause can be waived. York also referred the adjudicator to Westbourne Grammar School v Gemcan Constructions Pty Ltd [2017] VSC 645 where Dura had been considered.
• [31] In considering the matter, the adjudicator referred to the parties' submissions as to the application of Dura to the circumstances and concluded that:

"119. It is clear that the Show Cause Notice must satisfy clause 39.8(d) of the Contract.

1. The Claimant's Show Cause Notice dated 21 August 2024 did not satisfy clause 39.8(d) because it specified a time that was less than 7 clear days.
2. Westbourne Grammar School v Gemcan Constructions Pty Ltd [2017] VSC 645 however does not deal with a situation where a respondent waives its contractual right to assert the notice sent is invalid because it elects to answer the notice including within the time specified in the notice to show cause,
3. The Respondent could have informed the Claimant that its Show Cause Notice was invalid and done nothing more. The Claimant would then have had no contractual basis for terminating the Contract and would have had to re-issue its amended Notice to Show Cause to commence the process of termination.
4. The Respondent, however, responded to the Show Cause Notice within the time specified by the Claimant in the 21 August 2024 Notice to Show Cause and waived its right to do nothing as it was contractually entitled to do.
5. I refer to Dura which supports my conclusion to how to regard the Notice to Show Cause as follows;

388. Hudson's Building and Engineering Contracts, state the general rule concerning modern contractual determination clauses that require written notice in one form or another at the time of determination of the contract in these terms:

Express notice requirements are often in 'two tier' form ... In every case the clause must be carefully considered and closely followed in all respects, both as to the contents and timing of the notices, but the courts will usually regard the notices as commercial documents, and the modern approach is to interpret notice clauses with regard to their commercial purpose [Mannai Investments Co Ltd v Eagle Star Assurance [1997] UKHL 19; [1997] AC 749].

390. The Court of Appeal of this court, in MLW Technology Pty Ltd v May, in the context of a licensing agreement, considered the principles relevant to interpreting the effect of contractual notices. Gillard AJA emphasised that in construing commercial contracts, and the actions of businessmen, a common sense non-technical approach should be adopted. Gillard AJA approved of the observations of the House of Lords in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd finding them to accord with authority in this court. A reasonable recipient, in the circumstances of the parties is aware of the terms of the contract, of the correspondence that has passed between the parties, and of the history of the building project. A builder would have had extensive knowledge of the works."

1. 125. The purpose of the Show Cause Notice dated 21 August 2024, was to make it clear to the Respondent that the Claimant considered the numerous identified failures to provide design information within the period agreed by the parties that is set out in part H of the Annexure to the Contract substantial breaches of Contract and demanded the Respondent to show cause as to why it should not terminate the Contract.
2. By answering the Notice to Show Cause, the Respondent indicated it did not wish to rely on its contractual right to do nothing and provided a full response on 28 August 2024. In other words, the Respondent waived its right to insist upon the Claimant's strict compliance with 39.8 of the Contract."

• [32] Up to this point, York has no complaint.
• [33] However, the adjudicator then went on to refer to Allianz in this way:

"127. In further support of that conclusion, I refer to Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788. In that judgment, Kiefel CJ, Gageler, Edelman, Stewart [sic] and Gleeson JJ described a similar form of waiver in the following terms;

1. It has been repeatedly said that "waiver" is a term that is used in many different senses. Perhaps the most common usage of waiver is to describe an unequivocal decision by a party, communicated to the other party, not to insist upon a right or not to exercise a power.

1. By itself, a waiver of a right is rarely irrevocable. For that reason, it has sometimes been said that the general rule concerning a waiver of a right, "in the sense of an intimation of an intention not to enforce it", is that the mere act of representing that a right has been waived is "of itself inoperative". Similarly, it has been said that "the mere statement of an intention not to insist on a right is not effectual unless made for consideration ... A mere waiver signifies nothing more than an expression of intention not to insist upon the right". Perhaps more accurately, the legal position is that although a waiver does have legal effect in that "the waiver is binding on the waiving party, unless the waiver is effectively retracted", the waiver can generally be revoked at any time with reasonable notice.

1. Nevertheless, exceptions or "special cases" exist where a unilateral waiver cannot be revoked. One exception is where the strength of the interest of finality in litigation can sometimes mean that a waiver of particular rights related to litigation is irrevocable. For instance, the waiver of legal professional privilege will be irrevocable "where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect". A similar approach, which also "depended upon considerations founded in the nature of the adversarial litigious process" that are "not relevant to the identification of the rights and obligations of parties to contracts", was taken in The Commonwealth v Verwayen by Toohey J and Gaudron J. Their Honours concluded that an undertaking not to plead a limitations defence had become irrevocable. But, even then, that view did not command the support of a majority of the Court. Brennan J, by contrast, considered that the "ordinary principles of estoppel" applied to the waiver in that case so that it could be revoked at any time before it had been relied upon to the detriment of the other party, or otherwise until judgment was entered so that no amendment to the pleading was possible

128. The Respondent replied to the Claimant's Notice to Show Cause, within the prescribed time, and made clear its position. By that act, the Respondent expressly made clear to the Claimant its position and implicitly invited the Claimant to accept its reply or take the next steps.

129. The Claimant considered the Respondent's reply to the Claimant's Show Cause Notice of 21 August 2024 and determined the Respondent's reply did explain (show cause) as to what the Respondent proposed to do to rectify the breaches in relation to failure to provide design in a timely manner.

130. The Claimant relied and acted on the Respondent's reply of 28 August 2024 and issued its notice of full suspension under clause 39.9 on 29 August 2024.

If the Principal fails to show reasonable cause by the stated date and time, the Contractor may, by written notice to the Principal, suspend the whole or any part of WUC.[2]

The Contractor will remove the suspension if the Principal remedies the breach.

The Contractor may, by written notice to the Principal, terminate the Contract if, within 7 days of the date of suspension under this subclause the Principal fails:

b) if the breach is not capable of remedy, to make other arrangements to the reasonable satisfaction of the Contractor.

Damages suffered by the Contractor by reason of the suspension will be assessed by the Superintendent, who will certify them as moneys due and payable to the Contractor.

132. The Respondent had a further 7 days from the date of the Notice of full suspension of works under Contract to explain how the Respondent would remedy the breaches. The Respondent did not take any such steps in the period following the Claimant's notice of full suspension.

133. On 10 September 2025, 12 days after it had issued its Notice of full suspension of works under Contract to remedy the breaches, the Claimant send [sic] a further written notice terminating the Contract.

134. Notwithstanding the issue of whether the Respondent had committed the notified substantial breaches of Contract, I am satisfied that the Claimant followed the requirements of the Contract, as amended by the conduct of the parties and lawfully terminated contract."

• [34] York submits that the adjudicator's consideration of Allianz denied them procedural fairness as no party referred the adjudicator to Allianz, nor was York given an opportunity to address the adjudicator on the relevance of Allianz.
• [35] In summary York's position is that the adjudicator:

(a) determined the issue of waiver in reliance on Allianz when, in fact, the reasoning in Allianz supported the opposite proposition to that found by the adjudicator; and

(b) relied on Allianz to justify his conclusion that, as a matter of law, York's mere act of replying to Tomkins' Notice within the prescribed time was an act of waiver.

• [36] Allianz described a common usage of waiver as an "unequivocal decision by a party, communicated to the other party, not to insist upon a right or not to exercise a power".[3] However, in this case, York states that the opposite occurred as York's response adopted an unequivocal position that strict compliance with the requirements in cl 39.8 was necessary.
• [37] York submits that procedural fairness required the parties to be given notice of the adjudicator's intention to rely on Allianz, in circumstances where neither party had made submissions about Allianz and, critically, its application to the facts in the present case. York states that it is not to the point that the result was consistent with Tomkins' submissions to the adjudicator.
• [38] York states that the result was reached by a view of the law for which neither of the parties had contended and at the hearing summarised their position in this way:

".. But we say the problem about it is that had we been alerted to the fact - had the adjudicator said to us, "Look, I'm concerned about the Allianz. I've heard all about Dura, and I've got some views about that, but I'm concerned about Allianz because I think that supports Tomkins' position." That's what he should have done to give us natural justice. But he didn't do that. Had he done that, we would have said, "Well, Mr Adjudicator, in fact, that decision is squarely against Tomkins because of the part that's extracted in the reasons which says that it must be an unequivocal rejection of rights."

• [39] The duty to afford procedural fairness does not have a fixed content. Procedural fairness "conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case".[4]
• [40] The purpose of the BIF Act and the nature of an adjudication confine what the duty to act fairly requires.
• [41] The fact that an adjudicator's decision is interim only and not "the final word on the dispute ... reduces the imperative for rigorous standards of procedural fairness to apply".[5]
• [42] In Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd [2020] QSC 133; (2020) 4 QR 410, Bond J (as his Honour then was) provided a detailed consideration of jurisdictional error, including a denial of procedural fairness, and stated:

"[41] ... the valid exercise of an adjudicator's jurisdiction is conditioned on the adjudicator having accorded to the parties what White JA described in Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd as "the necessary level of procedural fairness". The juridical basis for this proposition is the same as the preceding propositions. The legislature must be taken to have contemplated that an adjudicator would have accorded the parties the necessary level of procedural fairness, such that failure to do so would be regarded as breach of a condition of the valid exercise of the jurisdiction..."

• [43] Generally, the parties must anticipate possible findings and make submissions on them.
• [44] The test is objective, i.e., "whether the party asserting the breach of procedural fairness received express notice, or should reasonably have anticipated, that either the adjudicator or the other party would rely upon the issue or principle concerned".[6]
• [45] I note that the arguments involving high degrees of specificity about the relevant issues should be viewed sceptically. In A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2024] NSWCA 7, Leeming JA observed that:

"[4] The issues in most disputes are familiar, and only rarely will there be scope for an adjudicator to determine them in a way which could not be anticipated thereby amounting to procedural unfairness".

• [46] In Musico v Davenport [2003] NSWSC 977, McDougall J acknowledged the fast rough and ready way of assessing a builder's entitlement to progress claims. However, even in this context, if an adjudicator comes to a particular determination on a particular ground, for which neither party has contended, then the requirements of natural justice require the adjudicator to give the parties notice of that intention:

"[107] ... It may readily be accepted that the Act provides for a somewhat rough and ready way of assessing a builder's entitlement to progress claims. It may also be accepted that the procedure is intended not only to be swift, but also to be carried out with the minimum amount of formality and expense. Nonetheless, what an adjudicator is required to do is to decide the dispute between the parties. Under the scheme of the Act, that dispute is advanced by the parties through their adjudication application and adjudication response (which, no doubt, will usually incorporate the antecedent payment claim and payment schedule). If an adjudicator is minded to come to a particular determination on a particular ground for which neither party has contended then, in my opinion, the requirements of natural justice require the adjudicator to give the parties notice of that intention so that they may put submissions on it..."

• [47] In this case, the adjudicator did not come to determination on a ground that neither party had contended for.
• [48] The dispute between the parties was waiver and both parties engaged with this issue in their submissions to the adjudicator. The adjudicator determined the issue in favour of Tomkins and, in doing so, referred to a case that neither party had referred to, nor had been given an opportunity to make submissions upon.
• [49] In John Holland Pty Ltd v TAC Pacific Pty Ltd [2010] 1 Qd R 302,[7] Applegarth J considered the requirements of a denial of procedural fairness when a decision turns on a point of law not contended by any party:

"[50] In determining whether there has been a substantial denial of natural justice it is not sufficient to simply identify the issue in dispute between the parties, and to determine whether they had an opportunity to make submissions with respect to that issue... The subject of a decision is entitled to have his or her mind directed to "the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it". In a case such as the present, if the decision is likely to turn on a point of law not contended for by one of the parties, and about which the parties have not been given an opportunity to address, then the requirements of natural justice will not have been observed. It is the issue of law, and not the general issue in dispute, upon which the decision is likely to turn."

• [50] In John Holland, the adjudicator failed to provide the parties an opportunity to address a recent authority that the adjudicator considered overruled a case relied on by one of the parties on a crucial issue. This is distinguishable from the circumstances of this case, where the decision did not "turn on a point of law not contended for by one of the parties".[8]
• [51] The critical issue in this case was whether York's conduct in responding to Tomkins' notice amounted to waiver.
• [52] Both parties were alive to the issue and addressed the waiver issue in their submissions before the adjudicator, with specific reference to Dura.
• [53] Tomkins' submission before the adjudicator was that York's conduct amounted to waiver by responding to the Notice within the time specified in the notice; this was the same conduct identified by the adjudicator as constituting waiver.
• [54] The adjudicator, after considering Dura, determined that, by answering the Notice, the respondent indicated that it did not wish to rely on its contractual right to do nothing and provided a full response.
• [55] The adjudicator then went on to refer to Allianz which he regarded as dealing with a similar form of waiver. If, as York contends, he misapplied Allianz, then that does not amount to a denial of procedural fairness. York had an opportunity to address the adjudicator about waiver and did so, as it saw fit.
• [56] York was aware of the argument put by Tomkins about waiver and had a choice about how it responded: address the authority of Dura or look at the concept, or the doctrine, of waiver more broadly. York chose the former and limited its submissions.
• [57] In my view, the adjudicator's reference to Allianz does not amount to a denial of procedural fairness.
• [58] The answer to Separate Question 4 is "No".

Separate question 5: If the answer to separate question 4 is "yes", was it a material denial of procedural fairness?

• [59] I have determined that York was not denied procedural fairness by the adjudicator's reference to Allianz. Accordingly, Separate Question 5 does not arise.
• [60] However, I will briefly address this question.
• [61] If there was any denial of procedural fairness (which I have not found) then the next question is whether this denial of procedural fairness was material to the adjudicator's decision.
• [62] The principles of natural justice do not extend to requiring adjudicators to give the parties an opportunity to put submissions on matters that were not germane to their decision. The concept of materiality is inextricably linked to the measure of natural justice that the Payment Act requires parties to be given in any particular case.
• [63] As to materiality, Applegarth J in John Holland stated:

"[40] The adjective "substantial" has been used in the relevant authorities to capture the principle that the opportunity denied was material, namely that the matter about which the adjudicator did not provide an opportunity to be heard was a point upon which the adjudicator based his or her decision and was significant to the Payment Actual determination. In addition, the Court's concern is with the practical effect of the alleged denial of natural justice. Reference to the High Court's decisions in Stead v State Government Insurance Commission and Ex parte Aala supports the proposition that even if the Court is satisfied that there has been a denial of natural justice, relief may be denied if it can be shown that compliance with the requirements of natural justice could have made no difference to the outcome. It is probably sufficient in this regard for the applicant for relief to show that there were substantial submissions that, as a matter of reality and not mere speculation, might have persuaded the adjudicator to change his or her mind."

• [64] The "concept of materiality is inextricably linked to the measure of natural justice that the Act requires parties to be given in a particular case".[9]
• [65] Only a "substantial" denial of procedural fairness may invalidate an adjudicator's decision.[10]
• [66] An adjudicator need not give the parties an opportunity to make submissions about matters that are not germane to the decision.[11]
• [67] The opportunity to be heard must have been denied in a "real and material sense", which directs attention to the way the adjudicator reached his or her decision.[12]
• [68] Even where there has been a denial of procedural fairness, relief may be denied if compliance with the duty could have made no difference to the outcome.
• [69] It may be sufficient for the moving party to show that "substantial submissions" might have changed the adjudicator's mind.[13]
• [70] York submits that the denial of procedural fairness was material for the following reasons:

(a) had they been given an opportunity to address the conduct that the adjudicator found constituted a waiver, they could have submitted that this conduct could not ground such a finding because it was not an unequivocal acceptance of the show cause notice;

(b) contrary to the adjudicator's view, Allianz did not support the waiver finding;

(c) had submissions been made, there was a realistic possibility of a different outcome, including that Tomkins' termination was unlawful, no reference date had arisen, and the adjudicator had no jurisdiction;

(d) no other basis was identified by the adjudicator for his finding as to the reference date;

(e) the parties did not advance any other basis for the existence of the reference date and were not given an opportunity to be heard in relation to any other basis;

(f) further, to the extent that any other basis might hypothetically exist, it was not determined by the adjudicator in a way contemplated by the Act (that is rationally and having regard to the Contract).

• [71] In Demex,[14] the New South Wales Court of Appeal addressed materiality in this way:[15]

"[32] Consistently with the effect of what was said in Brodyn, and with the arguments put by the appellant in this case, it should be understood that only if there has been a substantial denial of procedural fairness by an adjudicator in determining an adjudication application will there be jurisdictional error under the Act. Put another way, the content of the requisite procedural fairness is reduced: note Cardinal at [60]. What this means in practice will turn on the particular circumstances of cases. But generally a conclusion of invalidity would only be reached if there was a significant departure from what would ordinarily be the requirements of procedural fairness for a person exercising a statutory power, and where that departure could be characterised as leading to substantial practical injustice in all the circumstances. This approach reflects the fact that the Act provides for a "rough and ready" process (Chase Oyster Bar at [208]), not intended readily to be held invalid on judicial review.

[33] McNab referred the court to the decision of Doyle J in Ausenco Operations Pty Ltd v Ferretti International Ottoway Pty Ltd. As his Honour noted at [61] in that decision, "it is not always clear whether an adjudicator has determined a matter on a basis which was not contended for by the parties, or which had not otherwise been put in issue", saying that "[w]hether this is so will often depend upon the level of abstraction or specificity at which one articulates the issues in dispute". He added at [62] that beyond the extremes, "it is difficult to generalise as to the level of abstraction or specificity at which the obligation to afford procedural fairness must be addressed in a particular case". Even so, consistently with the approach just stated, a reviewing court should view sceptically arguments involving high degrees of specificity in this regard.

[34] The primary judge stated at [9] that it "was common ground between the parties that a denial of procedural fairness in an adjudication, if material or substantial, would require an adjudication determination to be set aside" (citation omitted). Insofar as what is set out above is different from the standard the primary judge applied, it is first one of emphasis in relation to what is meant by substantial. That notion has practical significance. Further, there is a difference between considering whether there has been a departure (substantial or otherwise) from the standard of procedural fairness required and whether or not any such departure is material in the sense recently emphasised by the High Court. Whilst both involve issues of relative significance, which may overlap, conceptually the former looks to whether or not there has been a departure from the type of fairness that the Act requires. The latter involves asking a (hypothetical) factual question, looking to what would have occurred but for that departure in the sense of asking whether it deprived the challenger of a realistic possibility of a different outcome: MZAPC v Minister for Immigration and Border Protection at [2], [85]".[16]

• [72] Even if I had found that there was a denial of natural justice, I am not satisfied that it was a material denial of procedural fairness.
• [73] As the adjudicator's reasons set out, Allianz was referred to as "further supporting" a decision already reached on other grounds. It was an additional supplement to the decision he had already made.
• [74] Even if the adjudicator invited and accepted submissions that Allianz was not relevant (as York contends), at best - for York's position - that would have removed mere "further support" for a decision already made. Further submissions about Allianz would not have addressed the primary basis of the adjudicator's decision.
• [75] In all the circumstances, York cannot demonstrate that the adjudicator's failure to seek submissions about Allianz was a substantial denial of procedural fairness.[17]
• [76] The answer to Question 5 (if required) is "No".

Separate Question 1: Is the Applicant entitled to the relief claimed in paragraph 2 of the Originating Application?

• [77] By paragraph 2 of the Originating Application, York seeks declarations that the following parts of the Adjudication Decision are void for jurisdictional error:

(a) the adjudicator's decision that Tomkins was entitled to be paid for "unfixed materials"; and

(b) the adjudicator's decision that Tomkins was entitled to be paid for certain "termination costs", namely, demobilisation costs, staff costs, items left on site, and overheads on each of those costs.

Separation Question (1)(a): unfixed materials

• [78] On 29 August 2024, Tomkins purported to suspend the WUC.
• [79] The next day, Tomkins was observed removing materials from the site and the Superintendent wrote to them advising that they were not permitted to do so and directed Tomkins to provide particulars of the materials (and other items) that had been removed. ("the Superintendent's instruction").
• [80] This letter was styled as an "Instruction" made pursuant to the following three clauses of the Contract:

(a) cl 20 provided (relevantly) that the "Superintendent may give a direction orally but will as soon as practicable confirm it in writing";

(b) cl 24 was headed "Site" and addressed a range of matters including possession of, and access to, the site;

(c) cl 28 provided (relevantly) that the "Superintendent may give the Contractor a written direction not to remove materials or construction plant from the site. Thereafter the Contractor will not remove them without the Superintendent's prior written approval (which will not be unreasonably withheld)."

• [81] Later that day, York wrote to Tomkins ("York's letter") in relation to the removal of the materials and relevantly stated:

"2. The Contractor is not entitled to suspend the whole or any part of the WUC under the Contract. The notified suspension of the whole of the WUC is a substantial breach of the Contract. We intend to write to you further on this subject shortly.

1. In any case, it has come to the Principal's attention that, despite having purported to suspend the WUC, the Contractor has been removing materials from the site today.
2. The Contractor's possession of the site only confers on the Contractor a right to such use and control as is necessary to enable the Contractor to carry out WUC. The removal of materials to be used for the WUC is the antithesis of carrying out WUC.
3. The Principal notes that the Superintendent has directed the Contractor to cease removing material from the site. We trust that the Contractor will comply with this direction."

• [82] After Tomkins continued to remove materials from the site, York applied to the Court for, and was granted, an injunction restraining Tomkins from doing so.[18] However, Tomkins' entitlement to payment for these materials remained in dispute, as:

(a) Tomkins maintained its entitlement to payment for unfixed material in the payment claim; and,

(b) York opposed such a claim based on cl 37.3 of the contract. (the cl. 37.3 issue).

• [83] As to clause 37.3 of the Contract, it relevantly provides:

"The Principal will not be liable to pay for unfixed plant and materials unless they are listed in Item 29 and the Contractor:

a) Provides the additional security in Item 13(e); and

b) Satisfies the Superintendent that the subject plant and materials have been paid for, properly stored and protected, and labelled the property of the Principal."

• [84] Both parties made submissions to the adjudicator about the cl. 37.3 issue.
• [85] Tomkins submitted that there were three bases as to why cl 37.3 did not apply to the circumstances of this case:

"307. Read in isolation, clause 37.3 prima facie disqualifies claims for unfixed plant and materials. However, when clause 37.3 is considered in the broader context of the Contract and against the mandatory provisions of the BIF Act, it becomes apparent that York's reliance on clause 37.3 as a means for withholding payment is unsustainable in the particular factual matrix that applies to the subject Payment Claim and to this Adjudication Application.

1. 308. Tomkins' position in this regard is founded upon three bases, only one of which the Adjudicator need accept in order to dispense with this reason for withholding payment.
   1. First, clause 3 of the Formal Instrument of Agreement (FIA) entitles Tomkins to payment for 'WUC'. The definition of WUC expressly includes the 'provision of materials'. The parties have agreed that the FIA takes precedence over clause 37.3 of the Amended General Conditions (GCS), and as a result, Tomkins is entitled to be paid for the unfixed materials (as part of the WUC).

310. Second, the contractual exclusion of Tomkins' entitlement to be paid for unfixed materials under clause 37.3 directly contradicts, and has the effect of excluding, Tomkins' statutory right to payment for 'related goods' under section 70 of the BIF Act. Accordingly, by operation of section 200(2) of the BIF Act, clause 37.3 is of no effect.

1. Third, in circumstances where the Contract is terminated under clause 39.9, Tomkins' contractual entitlement to recover damages under the terms of clause 39.10 trumps the operation of clause 37.3. Tomkins is entitled to recover the cost of unfixed materials effectively as a contractual debt under clause 39.10."

• [86] Without going into the detail, York then addressed each of these matters in their submissions to the adjudicator.
• [87] York's position was that, pursuant to clause 37.3, York would not be liable to pay for such materials, except in certain circumstances which were not applicable.
• [88] The adjudicator, in his reasons, addressed the three bases Tomkins raised in relation to the cl 37.3 issue. In relation to the first basis, the adjudicator found:

"263. In the normal course of events, the Respondent had no claim over the unfixed materials because nothing in the Contract provided the Respondent any possessory or ownership rights over the unfixed materials nor did it have any obligation to pay for the unfixed materials pursuant to Item 29 of Part A of the Annexure and clause 37.3 of the Contract. Similarly, the Claimant had no entitlement to claim payment for unfixed materials pursuant to clause 37.3 of the Contract.

1. I acknowledge that if the Respondent had given its direction under clause 39.4 of the Contract to take the work out of the hands of the Claimant before it gave the 30 August 2024 instruction, the Respondent would have accrued the right to demand that those materials be left on site until the WUC had been completed pursuant to clause 39.5. If that had happened, the Superintendent would have been required to undertake a final assessment pursuant to clause 39.6 of the Contract considering the value of the unfixed materials and the Respondent's costs (including additional costs) required to complete the WUC and paid any money owing to the Claimant at completion of the WUC.
2. The Claimant terminated the Contract on 10 September 2024 before the Respondent issued its instruction under clause 39.5 on 12 September 2024. Furthermore, up until 10 September 2024, the Claimant was bound to follow the instructions given by the Superintendent.
3. In those circumstances, the Respondent had accrued no right over the unfixed materials prior to 30 August 2024 and there was nothing preventing the Claimant from removing its unfixed materials from the site before the Respondent directed otherwise.
4. The Respondent's instruction the Claimant [sic] to leave the unfixed material on site was in effect was [sic] an instruction to vary the Contract by providing to the Respondent the unfixed materials including the unfixed reinforcement. The 30 August 2024 instruction was a variation under clause 36.1 of the Contract.
5. Upon issuing the instruction to leave all unfixed materials on site, the unfixed reinforcement became the property of the Respondent, and the Respondent accrued an obligation to the Claimant for the payment of the unfixed material it had provided.
6. The direction to leave the unfixed materials on site was a direction to perform a variation under clause 36.1 of the Contract, which provides:

The Contractor will not vary WUC except as directed in writing under this clause 36.

The Superintendent, before the date of practical completion, may direct the Contractor to vary WUC by any one or more of the following which is nevertheless of a character and extent contemplated by, and capable of being carried out under, the provisions of the Contract (including being within the warranties in clause 2A):

(c) change the levels, lines, positions or dimensions

If the Contractor considers that a direction constitutes a

variation, it must, as a condition precedent to any entitlement, give the superintendent notice within 10 business days of the direction, and in any event before commencing any work, the subject of the direction."

• [89] I note that these paragraphs (or some of them) are repeated by the adjudicator when addressing the second and third bases of Tomkins' argument. Importantly, in relation to the second and third bases of Tomkins claim, the adjudicator repeated that: "(T)he 30 August 2024 instruction was a variation under clause 36.1 of the Contract."[19]
• [90] Clearly, the adjudicator considered and found that there was a variation of the contract.
• [91] Ultimately, the adjudicator found that Tomkins was entitled to $7,217,486.65 for unfixed materials.
• [92] York submits that, in the circumstances, it was denied procedural fairness, as neatly summarised by the following submissions at the hearing:

"The jurisdictional error alleged, your Honour, is a material denial of procedural fairness. This arose from the adjudicator's failure to put York on notice of his intention to find that a letter that had been sent by York to Tomkins was, in fact, a variation direction under clause 36 of the contract.

A point that's made by Tomkins is that it was not, in fact, a letter from York, but rather an instruction from the superintendent on the same day that was the focus of the adjudicator's decision. The reasons do refer to both correspondence, but it really makes no difference, your Honour. The finding that either letter amounted to a variation direction under 36 was a decision on a basis that no-one had advanced, and with respect, could not have been anticipated by the parties or, for that matter, York. In reality, the adjudicator, off his own bat, made the variation finding, and his characterisation of the correspondence in that respect was incorrect."

• [93] Tomkins states that York was not denied procedural fairness as:

(a) York was aware of the issue in dispute;

(b) the adjudicator did not determine the issue in a way that could not be anticipated by York; and

(c) the adjudicator's finding is consistent with submissions made by the parties to the adjudicator.

• [94] Tomkins' submissions to the adjudicator were:

(a) York had a contractual obligation to pay Tomkins for any unfixed materials that had become part of the works under Contract;

(b) ss 66 and 70 of the BIF Act entitled Tomkins to a progress payment for supplying to York unfixed materials in connection with the works under Contract;

(c) York had "refused to allow Tomkins to retake possession of the unfixed material", the corollary of which is that York had possession of the unfixed material.

• [95] York's case was a simple one: that Tomkins had no entitlement to payment for unfixed materials because, as by clause 37.3, the parties had agreed that York would not be liable to pay for such materials, except in certain circumstances that did not apply.
• [96] Tomkins submits that the adjudicator's finding that the Superintendent's Instruction had increased the works under Contract was within the issues that the parties had put "in play" and refers to the following parts of Yorks submission to the adjudicator:

"583. The existence of the two provisions - the FIA's general entitlement to payment for materials and the specific exclusion in clause 37.3 for unfixed materials - does not create an ambiguity or inconsistency. Rather, it reflects the ordinary practice in construction contracts. Clause 37.3 acts as a specific restriction on the broader entitlement in the FIA, clarifying that the Contractor is not entitled to payment for materials that have not been fixed to the works unless agreed otherwise.

1. Here, clause 3 of the FIA says no more than what clause 2.1 of the General Conditions already says (requiring the Respondent to pay the Claimant for the work, which includes the provision of materials). Clauses 2.1 and clause 37.3, as they appear in the Contract are included in the unamended Australian Standard template of the AS4000-1997 contract. If one were to follow the Claimant's rationale, clause 37.3 of the Australian Standard template would always be at risk of being ineffective pursuant to clause 8.1 of the template due to an inconsistency with clause 2.1. This demonstrates the illogicality of the Claimant's submission."

• [97] Accordingly, Tomkins states that the parties' submissions on the adjudication application had invited the adjudicator to consider whether Tomkins' works had been varied as:

(a) Tomkins reproduced York's letter, which had referred to the Superintendent's Instruction and identified its consequence that Tomkins was not allowed to retake possession of unfixed materials;

(b) Tomkins argued that, by leaving unfixed materials on site, it had supplied materials for which Tomkins had a statutory right to a progress payment;

(c) York had argued that cl 37.3 of the Contract would apply to restrict Tomkins' entitlement to payment for unfixed materials "unless agreed otherwise";

(d) York identified that cl 2.1 of the General Conditions of Contract required York to pay Tomkins for the work, including provision of materials, thus directing attention to cl 2.1, which provided that York would pay Tomkins "for work ... adjusted by any additions or deductions made pursuant to the Contract";

(e) York submitted that the adjudicator would be required to value the unfixed materials under ss 72(2)(b) and 72(3) of the BIF Act if certain other findings were made. A matter identified by York as relevant to that valuation process was any variation agreed to by the parties.

• [98] Tomkins' focus on York's reference to "unless agreed otherwise" and clause 2.1 in their submissions to the adjudicator.
• [99] Accordingly, Tomkins states that, by doing so, York acknowledged that the parties could agree to change the default position under cl 37.3, and that York chose not to address the possibility that the parties had "otherwise agreed" to alter that default position.
• [100] However, Tomkins submits that it was, nonetheless, open to the adjudicator to consider that issue.

• [101] In all of the circumstances, I am satisfied that there was a material denial of procedural fairness by the adjudicator.
• [102] Tomkins raised three bases before the adjudicator as to why they were entitled to their claim for unfixed materials.
• [103] The adjudicator addressed Tomkins' first argument in the reasons and found that York was liable to pay for unfixed materials but not for the reasons advanced by Tomkins.
• [104] The reasons, read as a whole, reveal that the adjudicator only found that Tomkins was entitled to be paid for unfixed materials under cl 3(b) of the FIA because he had decided that:

(a) York's letter involved a variation to the WUC; and

(b) the Variation direction had the effect of increasing the WUC to include the unfixed materials which put the materials within the scope of cl 3(b), namely "completed WUC".

• [105] The adjudicator's reasons dealt with how a variation was to be priced under the Contract:

"280. ... In other words, the Respondent was required to value the unfixed materials at the time it directed the Claimant to leave the unfixed reinforcement on site."

• [106] It is evident from the reasons that the variation finding was critical to the decision that Tomkins was entitled to any payment under cl 3(b). It was not by operation of the order of precedence.
• [107] The second basis raised by Tomkins turned on the no-contracting provisions in s 200 of the BIF Act which the adjudicator addressed in the reasons. In doing so, the adjudicator referred to Patrick Stevedores Operations No 2 Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2014] NSWSC 1413, (a case that had been cited by York) which was distinguished as it tuned on different facts. The adjudicator continued as follows:

"287. ...The distinguishing fact that leads to a different conclusion is that on 30 August 2024, the Respondent instructed the Claimant to leave all unfixed materials on site."

• [108] Then, the adjudicator went to set out the same analysis from the reasons in relation to the first argument in support of his finding that Tomkins had been directed to vary the WUC.
• [109] The adjudicator did not find that cl 37.3 was of no effect by virtue of s 200. Rather, he found that York's variation direction had the effect that Tomkins was entitled to include unfixed materials in a payment claim, under the Act, and be paid for those materials.
• [110] The third basis raised by Tomkins was that it was entitled to recover damages in the amount of the costs of the unfixed material under cl 39.10. The adjudicator addressed Tomkins' third argument in the reasons and ultimately did not accept Tomkins' construction of cl 39.10.
• [111] As was done with the second argument, the adjudicator set out the same analysis in relation to the first argument in support of his finding that Tomkins had been directed to vary the WUC.
• [112] The adjudicator then found that:

"341. On 30 August 2024, the Respondent instructed to leave the unfixed materials on the site, which was a variation to increase the WUC under clause 36.1. The Superintendent should have, as soon as possible, valued that variation pursuant to clause 36.4 of the Contract.

1. The Claimant terminated the Contract on 10 September 2024 and as at that time, the Superintendent had not, in breach of its obligations under clause 36.1 valued the variation to leave the unfixed materials on site under clause 36.4.
2. 343. In those circumstances, the Superintendent's failure to value the unfixed materials became a loss or damage arising from the suspension and clause 39.9 of the Contract required the Superintendent to value that loss or damage and adjust the Contract sum after termination..."

• [113] It was only on that basis of a variation direction where the Superintendent failed to value the unfixed materials, that the adjudicator found that Tomkins was entitled to payment under cl 39.9 (not cl. 39.10).
• [114] Generally, the parties must anticipate possible findings and make submissions on them.
• [115] Under the scheme of the Act, disputes between the parties are advanced through their adjudication application and adjudication response (which, no doubt, will usually incorporate the antecedent payment claim and payment schedule).
• [116] In this case, as the case was framed by the parties, York did not receive notice of the variation finding, nor in the circumstances should it "reasonably have anticipated"[20] that the adjudicator would go down the path of finding a variation to the contract to resolve the cl 37.3 issue.
• [117] York's submission to the adjudicator was not an invitation for him to decide the cl. 37.3 issue as he did. Yorks' counsel at the hearing appropriately characterised the effect of Tomkins' submission to the contrary:

"Now, the effect of Tomkins' submission seems to be that the mere mention of this clause would have directed the adjudicator's attention to the terms of the provision which included, amongst other things, an acknowledgment that York would pay Tomkins a lump sum contract price that could be adjusted by additions or deductions made pursuant to the contract. That, it says, is the invitation or the gateway by which the adjudicator was then entitled to make the finding that York's letter amounted to a variation direction under clause 36. That submission is incorrect, your Honour.

The mere reference to the general payment clause in contract, in the context of responding to a particular submission, did not give the adjudicator licence to make a finding that York's letter was a variation direction, that no one had made that submission to me. Not wishing to use too many metaphors, but if he did that, your Honour, the adjudicator would have gone off on a frolic of his own."

• [118] York's reference in their submissions to the adjudicator to "unless agreed otherwise" in the context of cl. 37.3 was fairly setting out the parameters of the clause.
• [119] It did not open the door to find an agreement between the parties that was not contemplated by either party in their submissions. The mention of clause 2.1 in York's submissions did not give the adjudicator an invitation to embark on finding a variation.
• [120] In my view, for the adjudicator to consider the issue of variation, the parties should have been given an opportunity to make submissions.
• [121] A consideration of the submissions made to the adjudicator, as compared to his reasons, demonstrates that the adjudicator embarked upon the variation issue without any encouragement from the parties.
• [122] No party addressed the adjudicator on this issue, and, in my view, a sensible reading of the submissions makes it clear that it was not an issue engaged with by the parties.
• [123] The issues raised by the parties in relation to the cl 37.9 issue were confined. Neither party contended that York's conduct resulted in a variation of the contract which would thus be determinative of the cl 37.9 issue. Tomkins' position at this hearing, by reference to piecemeal fragments of York's submissions, is artificial.
• [124] In this case, on this issue, the adjudicator went beyond the dispute between the parties.
• [125] The requirements of natural justice required the adjudicator to give the parties notice of his intention to decide the issue in the way he did and allow them to make submissions about whether there was variation. He did not. There has been a denial of procedural fairness.
• [126] The next question is whether the denial of procedural fairness was material to the adjudicator's decision. The threshold of materiality is not demanding or onerous.[21]
• [127] This Court may readily infer that, if the adjudicator had invited submissions on the variation finding, he would have approached York's submissions with an open mind.[22]
• [128] I am satisfied that there is more than a realistic possibility that the outcome could have been different if submissions on the definition of variation and the characterisation of York's letter had been received.
• [129] If given notice by the adjudicator, York could have made submissions addressing the following relevant issues:

(a) whether York's letter involved a variation, i.e., 'relinquishing' unfixed materials did not vary the WUC;

(b) that neither York's letter nor the instruction from the Superintendent identified the subject as relating to a variation;

(c) whether Tomkins' conduct in seeking to remove unfixed materials from the site involved it doing more work than what was otherwise required under the Contract; and

(d) the way in which the notice requirement in cl 36.1 operated pursuant to the BIF Act.

• [130] In all of the circumstances, I am satisfied that York could have made substantial submissions, as a matter of reality and not mere speculation, that might have persuaded the adjudicator to change his mind.
• [131] In my view, in relation to Tomkins' claim for unfixed materials, there has been a substantial denial of procedural fairness.

Separate Question 1(b) - the termination claim

• [132] Tomkins claimed $11,462,264.72 in termination costs on the basis that cl 39.10 created an "express contractual right ... to recover all damages which would otherwise have been available in circumstances where a common law claim for repudiation existed" (emphasis in original).
• [133] Clause 39.10 of the Contract relevantly provides:

"If the Contract is terminated pursuant to subclause 39.4(b) or 39.9, the parties' remedies, rights and liabilities will be the same as they would have been under the law governing the Contract had the defaulting party repudiated the Contract and the other party elected to treat the Contract as at an end and recover damages."

• [134] York disputed Tomkins' reliance on, and construction of, cl 39.10 and stated that this clause is simply a boilerplate provision which acknowledged that, at termination, each party's common law rights to damages for breach of the Contract were preserved.
• [135] York submitted that the claim was for damages and "it is beyond the scope of the Act to secure such a payment and scheduled $0.00 for payment of these costs."
• [136] The adjudicator awarded Tomkins some of the claimed costs and found that Tomkins was entitled to $1,213,843.30, comprising:

(a) $313,609.89 for demobilisation costs;

(b) $615,084.86 for staff costs;

(c) $174,799 for items that Tomkins left on site; and

(d) $110,349.49 for the cost of overheads on the items above.

• [137] All of these costs were incurred after Tomkins stated that the contract was terminated.
• [138] In their submissions to the adjudicator, Tomkins set out a summary of York's position that Tomkins had no right to a progress payment post termination:

"1597 York asserts that clause 39.10 bars Tomkins from recovering any amount by way of progress payment. York argues that the only remedy available to Tomkins post termination is a claim for damages which, it asserts, cannot be brought under the BIF Act. On page 206 of the Payment Schedule York states that:

Clause 39.10 of the Contract provides that if the Contractor terminates the Contract pursuant to clause 39.9 (which is denied), the parties remedies, rights and liabilities will be the same as they would have been under the law governing the Contract had the defaulting party repudiated the Contract and the other party elected to treat the Contract as at an end and recover damages. As the Contractor is claiming costs due to its unlawful termination, clause 39.9 confirms under the Contract this is a claim for damages for repudiation and therefore not claimable under the Act."

• [139] Tomkins then went on and made submissions as to why cl. 39.10 entitled them to recover under the Contract for repudiation damages:

"1603 Emphasis is placed upon the fact that clause 39.10 provides a contractual entitlement to a party who terminates under clause 39.4(b) or 39.9 (as the case may be). That entitlement is equal to, and derived from, the amount of damages the party would have been entitled to had it accepted the defaulting party's repudiation. It is not a claim for damages in the true sense - because damages are a remedy awarded by operation of law for breach of contract. Rather, it reflects a contractual mechanism that incorporates the measure of damages as determined under the governing law, treating the entitlement as a contractual right rather than a purely legal remedy (emphasis in original).

1. The Adjudicator is authorised (and indeed required) to award Tomkins a claim to which it is entitled under the terms of the Contract. Thus, if the Adjudicator accepts Tomkins submission that it validly terminated the Contract under clause 39.9 (refer to Part C of this Adjudication Application above), then Tomkins submits that the Adjudicator ought to find that Tomkins is entitled to the amount it 'would have been [entitled to had York] repudiated the Contract and [Tomkins] elected to treat the Contract as at an end and recover damages'.
2. Elaborating on this further, clause 37.4 permits Tomkins to make a final payment claim which includes a "progress claim" for works performed under the Contract (in the ordinary sense of the matters set out in Clause 37.1) " ... together with all other claims whatsoever in connection with the subject matter of the contract ... " (emphasis in original).
3. Where the subject matter of the Contract, through the inclusion of clause 39.10, expressly includes damages in the nature of that which would be available following repudiation, it follows that clause 37.4 allows for the inclusion of "repudiatory" damages in a final payment claim. The inescapable corollary of this is that such matters are also subject to adjudication proceedings under the BIF Act.
4. As elaborated on in further detail in Section G.4 below, in similar circumstances to the present dispute, the Court in Parkview Constructions Pty Limited v Sydney Civil Excavations Pty Limited & Anor [2009] NSWSC 61 arrived at the conclusion that a claim for loss of profit following termination was capable of being supported under the NSW equivalent of the BIF Act.
5. Loss of profit is a clear example of a claim which could, in ordinary circumstances, not be brought under the security of payment regime; however, Parkview stands as authority for the proposition that this general principle does not apply universally, and that the Courts are willing to uphold a claimant's entitlement to pursue such claims following termination.
6. The evident consideration is that a claimant who is wronged by a principal, should not, as a result of the Principal's wrongdoing (which leads to termination), be prevented from the expeditious recovery of amounts which the claimant is entitled to receive in accordance with the express terms of the construction contract.
7. If the Court is willing to accept that this is true for a loss of profit claim (which is perhaps the furthest removed category of claim from what is typically known to be available under the security of payment regime) it follows that other claims in the nature of "damages" including those repudiatory damages which clause 39.10 of the Contract expressly entitles Tomkins to recover, should also reasonably be supported by the Act.
8. This construction is necessary, where pursuant to clause 37.4 of the Contract, a claim which is brought under clause 39.10 is evidently a claim that is (to use the wording of clause 37.4) within the category of "other claims whatsoever in connection with the subject matter of the Contract" and is therefore something which may be included within a final payment claim.
9. If the Adjudicator were to accept that a claim under clause 39.10 could not be the subject of adjudication, in doing so they would have arrived at the untenable position that:

(a) the Contract allows for a particular type of claim to be included within a final payment claim; and

(b) the Act requires the Adjudicator to make a determination on the claimant's entitlement in respect to that claim; but

(c) the Act also precludes the Adjudicator from performing that function, because the assessment of the very claim which the Act requires the Adjudicator to assess is (on York's construction) beyond the Adjudicator's jurisdiction.

1613 The natural interpretation of the express wording of the Contract, when read in conjunction with the Act is that following termination, any claim in the nature of repudiatory damages which would fall within the scope of clause 39.10 may be brought in a final payment claims, and may subsequently also be subject to adjudication procedures under the BIF Act."

• [140] Tomkins stated that the effect of clause 39.10 is that Tomkins has an express contractual right to "be made whole following termination". Tomkins explained that this meant that they were entitled to recover whatever financial sum is necessary to place them into the position which it would have held if the Contract had not been terminated and had instead run its course to completion.
• [141] Tomkins then made submissions in relation to a number of items, all of which were referenced back to clause 39.10. The only item that did not refer to clause 39.10 was the claim for overheads and margin. However, it was made clear by Tomkins that this claim was in relation to Tomkins' overhead costs following termination. Accordingly, this claim was also reliant on the clause 39.10 argument made by Tomkins.
• [142] The adjudicator did not accept Tomkins' construction of cl 39.10 as permitting the recovery of 'all' common law damages:

"989 I accept the Respondent's argument that where the Contract has been terminated, all subsequent claims are claims for damages for the purposes of contract law.

1. However, it does not follow that all claims for damages cannot be claimed under the Contract or in a final payment claim made under the Act because the Contract expressly provides otherwise as does the Act.
2. Ordinarily, a Claimant cannot claim for damages arising from breach of contract unless the Contract expressly provides for claiming for the types of damages. Clauses 14, 32, 34.9 and 39.9 are examples of such clauses.

992 Furthermore, some claims for damages may be made pursuant to the provisions of the Contract that survive termination. For example; clause 39.9 requires the Superintendent and or the Respondent to assess certain damages after termination. Clearly, that is assessment and liability of the Respondent is [sic] an amount for which the Claimant can claim payment.

1. The operation of the Act permits claims for damages to be made in a final payment claim under the Act if those claims for damages are referable to the construction work. In other words, anything that was claimable under the Contract during the course of the Contract may be claimed in the final payment claim under the Act after termination of the Contract.
2. The permitted contents of a final payment claim following termination was explained in S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd as follows;

75. A similar proposition applies in relation to the final payment claim, which the Act authorises to be made when a contract has been terminated, and even though the fact of the termination means that there can never be a final payment claim advanced pursuant to the contract.

In the present case, it does not matter that the amount which represents the retentions withheld under the contract cannot be said to be an amount which has yet accrued due and payable under the contract.

The contractor has a statutory entitlement to a final payment claim, calculated under s 71(b) and valued under s 72(1)(b).

If the adjudicator values that claim in accordance with the provisions of the Act, the effect of that valuation may well be to enable the claimant to be paid an amount of money which includes the value of cash retentions withheld from work already done (and even though under the contract there was no accrued right to the return of cash retentions), but that seems to me to be made permissible by the terms of the Act.

1. In the event of termination under the clause 39.9, common law rights are expressly preserved by subclause 39.1, which states;

If a party breaches (including repudiates), the Contract, nothing in this clause will prejudice the right of the other party to recover damages or exercise any other right or remedy."

1. Clause 39.10 preserves each party's common law rights in respect to damages for breach of the Contract. It provides that if the Contract is terminated, each party's rights, remedies and liabilities are the same as they would have been under the law governing the Contract had the defaulting party repudiated the Contract and the other party had elected to treat the Contract as at an end and to recover damages.
2. Clause 39.10 is necessary otherwise a party terminating the Contract pursuant to clause 39 may not be able to recover damages because of such breach. Clause 39.1 makes it clear that a party terminating the Contract under subclause 39.4(b) or 39.9, as the case may be, may also at the same time exercise its common law rights to recover damages or exercise any other legal right or remedy.
3. Clause 39.10 ensures the preservation of the terminating party's rights to payment for work completed and the Contract and for damages referable to the Contract including for damages arising from the suspension.
4. I do not, however, accept the Claimant's assertion that all common law rights the Claimant may have in relation to the Contract can be applied in determining the Claimant's final entitlements under the Adjudication Application. The express words of clause 39.10 of the Contract only indicates that the parties' common law rights are not displaced by the Contract in the event of termination of the Contract.
5. To the extent any provision of the Contract conflicts with any section of the Act, section 200 of the Act provides that contractual provision will be void and have no effect in the determination of the parties' rights and liabilities. The provisions of the Act will prevail.

1001 The Contract provides for the assessment of certain types of damages by the Superintendent and payment of those assessed damages by the Respondent. For example, clauses 14, 32, 34.9 and 39.9 identify certain types of damages, which form part of the construction work in certain cases and may be the subject of a payment claim. This conclusion was confirmed in Coordinated Construction Co. Pty. Ltd. v. J.M. Hargreaves (NSW) Pty. Ltd. & Ors. [2005] NSWCA 228. The relevant extract from that case appears at paragraph 1010) below.

1002 The Claimant may similarly claim payment for damages under clauses 14, 32, 34.9 and 39.9 incurred during the course of the Contract after termination.

1003 I decided above at paragraphs 978) to 987), that the Act provides that upon termination of the Contract, the Claimant accrues a reference date being the date of termination and the Claimant is entitled to make a final payment claim under the Act.

1004 In other words, the Claimant was entitled to make the Payment Claim for completed work which includes damages incurred that were referred to in the Contract.

1005 The Claimant was entitled to claim for the damages suffered that were envisaged by the Contract, which were described in Hargreaves as forming a part of the construction work. The Claimant is not, however, entitled to claim for the types of damages that are not expressly permitted to be claimed by the Contract.

1006 Accordingly, I do not accept the Respondent's argument that the Payment Claim is invalid because it is a claim for damages.

1007 I also do not accept the Claimant's argument about the operation of clause 39.10."

• [143] The adjudicator then set out damages envisaged by the Contract by cl. 14, 15.1, 26.4, 32, 34.9 and 39.9 and considered the different types of termination costs that Tomkins had claimed.
• [144] Of relevance the adjudicator found that:

"1016 If damages referred to in the Contract form part of the increased costs or price of construction work actually carried out, those damages are clearly for construction work carried out".

• [145] York submits that the adjudicator dealt with the grounds raised by Tomkins in this way:

"....One is lack of procedural fairness, so the adjudicator just decided it on a basis which wasn't contended for by the parties. Clause 39.10 was what was suggested. He didn't decide on that. We further say, well, there's a lack of reasoning in the adjudicator's decision, because if your Honour looks at each of the four items for which he made awards, it's impossible to tell, we say, what really is the basis upon which he - the contractual or any other basis that he decides that the - that Tomkins is entitled to the amounts claimed, and we also say that in fact, it didn't apply the contract because you can't do that if you apply clause 39.10, because that's only a common law right. That just preserves common law damages rights."

• [146] In all of the circumstances, I am satisfied that there was a material denial of procedural fairness.
• [147] In their submissions to the adjudicator, Tomkins stated they were entitled to costs post termination in accordance with cl. 39.10, as this clause created an express contractual right for the claimant to recover all damages which would otherwise have been available in circumstances where a common-law claim for repudiation existed.
• [148] This was the issue that the parties engaged with and made submissions to the adjudicator about. Accordingly, the adjudicator is required to decide the dispute between the parties as framed by them.
• [149] However, the adjudicator found that cl 39.10 only preserved each party's common law rights to damages, not that it created, in itself, an entitlement to recover damages under the Contract.
• [150] In coming to this view, the adjudicator:

(a) accepted York's argument that, where the Contract has been terminated, all subsequent claims are claims for damages for the purposes of contract law; and

(b) did not accept the claimant's argument about the operation of cl 39.10.

• [151] Tomkins states that the adjudicator did not consider that cl 39.10 allowed Tomkins to claim for any termination cost. Instead, the adjudicator limited Tomkins' claims to "damages suffered that were envisaged by the Contract, which were described in Co-ordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd[23] as forming part of the construction work".
• [152] Tomkins states that the adjudicator then considered the different types of termination costs that Tomkins had claimed within the parameters allowed by clause 39.10, i.e., damages suffered that were envisaged by the Contract, as forming part of the construction work. Considered through this lens, Tomkins states that the items allowed were within the scope of cl 39.10.
• [153] Accordingly, Tomkins states that there was no procedural fairness as the adjudicator's reasons demonstrate that the claim was allowed under clause 39.10. However, I do not accept this position.
• [154] The adjudicator allowed the claim on a basis not contended for by Tomkins and did not give York the opportunity to address this basis.
• [155] As McDougall J stated in Musico v Davenport [2003] NSWSC 977:

"[107] ...If an adjudicator is minded to come to a particular determination on a particular ground for which neither party has contended then, in my opinion, the requirements of natural justice require the adjudicator to give the parties notice of that intention so that they may put submissions on it..."

• [156] The adjudicator did not do this.
• [157] Counsel for York states that, in doing so, the adjudicator denied York procedural fairness:

"because whatever the reason that's lurking in the mind of the adjudicator - it's not been told to us, but whatever's lurking there, it's not what the parties have argued about, and we know that because he expressly rejected that."

• [158] I accept this characterisation.
• [159] York was denied procedural fairness and, in my view, that denial was material. To come to such a conclusion does not require analysing the adjudication decision in a high level of specificity and in too narrow a way. What occurred, in my view, was a clear example of a material denial of procedural fairness.
• [160] The parties framed their submission to the adjudicator as to whether cl. 39.10 of the Contract entitled Tomkins to recover whatever financial sum was necessary to place Tomkins into the position which it would have held if the Contract had not been terminated and had instead run its course to completion.
• [161] The adjudicator did not accept Tomkins' submission as to its entitlement to termination costs pursuant to clause 39.10. That should have been the end of the matter, unless the adjudicator gave the parties notice of the basis upon which the adjudicator determined the matter.
• [162] This, I note, in parts is difficult to ascertain.
• [163] For example, in relation to demobilisation costs, the adjudicator stated that these were costs that that Tomkins was entitled to claim pursuant to s 71(b) of the Act:

"1045 I am persuaded that the costs of demobilisation were costs that formed a part of the total costs of the construction work under the Contract, that the Claimant is entitled to claim in the Payment Claim pursuant to section 71(b) of the Act."

• [164] No party addressed the adjudicator in relation to any of these claims being determined pursuant to s 71(b) of the BIF Act.
• [165] The adjudicator then valued the claim for demobilisation costs and decided that Tomkins was entitled to payment for costs of demobilisation in the amount of $313,609.89.00.
• [166] The adjudicator had earlier referred to SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2020] QSC 307, in which Bond J (as his Honour then was) had observed that, when a contract is terminated, the "contractor has a statutory entitlement to a final payment claim, calculated under s 71(b) and valued under s 72(1)(b)".[24]
• [167] The adjudicator assessed Tomkins' claim for staff costs in a similar way.
• [168] Section 71 of the BIF Act states:

The amount of a progress payment to which a person is entitled under a construction contract is -

(a) if the contract provides for the matter - the amount calculated in accordance with the contract; or

(b) if the contract does not provide for the matter - the amount calculated on the basis of the value of construction work carried out, or related goods and services supplied, by the person in accordance with the contract."

• [169] Section 71(b) of the Act does not, by itself, identify a contractual basis for the claims awarded by the adjudicator.
• [170] Whatever was lurking in the adjudicator's mind outside of the parties' submissions should have been exposed to the parties.
• [171] I accept that, had the adjudicator raised a contractual basis for the claim (which York asserts there was not) with the parties, it cannot be said that York's submissions, if given the opportunity to be heard on the matter, would not have resulted in a different outcome.
• [172] In the circumstances of this case, there was substantial denial of procedural fairness.

Separate question 2: was the existence of a reference date for Payment Claim 36 by reason of the operation of section 67(2) of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) a "subjective jurisdictional fact" or an "objective jurisdictional fact"?

• [173] Section 67 of the BIF Act sets out the meaning of a reference date:

(1) A reference date, for a construction contract, means -

(a) a date stated in, or worked out under, the contract as the date on which a claim for a progress payment may be made for construction work carried out, or related goods and services supplied, under the contract; or

(b) if the contract does not provide for the matter -

(i) the last day of the month in which the construction work was first carried out, or the related goods and services were first supplied, under the contract; and

(ii) the last day of each later month.

(2) However, if a construction contract is terminated and the contract does not provide for, or purports to prevent, a reference date surviving beyond termination, the final reference date for the contract is the date the contract is terminated."

• [174] Tomkins' position before the adjudicator, and, in this application, is that its termination of the Contract on 10 September 2024 was valid, and therefore that there was a reference date under s 67(2) of the BIF Act.
• [175] York's position before the adjudicator, and in this application, is that Tomkins' termination on 10 September 2024 was not valid, and therefore that there was no reference date under s 67(2) of the BIF Act.
• [176] Section 84 of the BIF Act sets out what the adjudicator must decide:

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

(a) an adjudication application;

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

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

(a) must decide -

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

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

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

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

(d) may call a conference of the parties; and

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

(3) If a conference is called, it must be conducted informally, and the parties are not entitled to any legal representation unless allowed by the adjudicator.

(4) The adjudicator's power to decide an adjudication application is not affected by the failure of either or both of the parties to make a submission or comment within time or to comply with the adjudicator's call for a conference of the parties."

• [177] In deciding that he had jurisdiction for the purposes of s 84(2)(a)(i) of the BIF Act, the adjudicator determined that Tomkins had validly terminated the Contract:

(a) as York was in substantial breach of the Contract in at least one of the respects alleged by Tomkins in the Show Cause Notice;

(b) as the Contract required compliance with the time requirements for a Show Cause Notice in clause 39.8(d) of the General Conditions of Contract;

(c) as the reference to "not less than 7 clear days" in clause 39.8(d) of the General Conditions of Contract meant that the calendar day on which a show cause notice was served cannot be included in the day count, and therefore Tomkins' Show Cause Notice did not strictly comply with the requirements of the Contract;

(d) however, by its conduct, York waived the requirement for strict compliance, such that Tomkins had validly terminated the Contract using the show cause procedure.

• [178] York contends that the decision of the adjudicator is affected by jurisdictional error and void because the adjudicator's finding of waiver was in error.
• [179] The adjudicator's finding on waiver is relevant to whether a reference date existed. Only if the Contract had been terminated validly would a reference date arise under s 67(2) of the BIF Act.
• [180] The existence of a reference date under a construction contract is a precondition to the making of a valid payment claim.[25] It is common ground between the parties that the existence of a reference date is a jurisdictional fact.
• [181] However, where the parties differ is whether the existence of a reference date (by reason of s 67(2) of the BIF Act) is a "subjective jurisdictional fact" or an "objective jurisdictional fact".
• [182] York contends that it is an objective jurisdictional fact, meaning the task for the Court on York's application is to decide de novo whether the Contract was terminated based on the evidence put before the Court.[26] On such a hearing, York will have the burden of proving that the Contract was not validly terminated.[27]
• [183] Tomkins contends that it is a "subjective jurisdictional fact", meaning the task for the Court in the application is to decide if the adjudicator arrived at the state of mind of having determined that the Contract was terminated in the way contemplated by the legislature.[28]
• [184] I note that the terms "objective jurisdictional facts" or "category 1 matters" are interchangeable, as are "subjective jurisdictional facts" or "category 2 matters". [29]
• [185] In Forme Two Pty Ltd v McNab Developments (Qld) Pty Ltd [2025] QSC 96, Hindman J succinctly explained the distinction between the two categories:

"[19] The terminology of category 1 and category 2 matters comes from the New South Wales Court of Appeal decision in Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd (Icon) and particularly at [13]-[15] of that decision. In that decision the Court stated (in effect, relevantly for present purposes) that jurisdiction may depend either on an "identified state of affairs" (the first category) or a "state of satisfaction of the decision maker as to an identified state of affairs" (the second category). The first category jurisdiction depends on a finding of a Court as to whether or not the required state of affairs existed, for the second, the Court is only concerned with whether the relevant opinion has been lawfully formed."

• [186] Brown J (as her Honour then was) in Watkins Contracting Pty Ltd v Hyatt Ground Engineering Pty Ltd [2018] QSC 065 put it this way:

"[62] The Court will not always make a determination as to the existence of a jurisdictional fact. If the donee of the power is authorised to decide authoritatively the existence of the jurisdictional fact, the Court enquires into the process adopted by the primary decision-maker's decision in determining that a jurisdictional fact exists, but does not enquire itself into the existence of that jurisdictional fact."

• [187] In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 78 NSWLR 393, McDougall J made the following observations:

"[167] A jurisdictional fact may be the existence or non-existence of a specified state of affairs. For simplicity, I will talk only in terms of a jurisdictional fact as the existence of a specified state of affairs. The legislature may specify that the existence of that state of affairs - the jurisdictional fact - is essential to the exercise of statutory power. Or it may go further, and specify as well that the donee of the power is authorised to decide, authoritatively, the existence of the jurisdictional fact.

[168] In the former case, if the exercise of power is challenged on the basis that the jurisdictional fact does not exist, the court must itself inquire into the existence of that fact. It may grant relief against the exercise of jurisdiction if it finds that the jurisdictional fact did not exist.

[169] In the latter case, the court inquires into the primary decision-maker's decision that the jurisdictional fact exists, but does not itself inquire into the existence of that jurisdictional fact."

• [188] The terms of s 67(2) are neutral on the issue of whether the requirement is an objective jurisdictional fact or a subjective jurisdictional fact.
• [189] It is a question of statutory interpretation whether the existence of a reference date is either required as a matter of objective jurisdictional fact or a matter about which an adjudicator was authorised to decide, i.e., a subjective jurisdictional fact_._
• [190] The distinction is significant because, as Bond J (as his Honour then was) explained in Niclin Constructions, the nature of the court's task changes depending on the relevant categorisation:

"[25] If the precondition to an exercise of power is the existence of an objective jurisdictional fact, then, if a challenge is brought to the existence of the jurisdictional fact, the Court's function is to determine de novo whether the objective fact existed. The Court determines the question upon the evidence before it, without being limited to the probative material before the repository of power. ...

"[26] On the other hand, if the precondition to the exercise of the power is that the repository of power has formed a particular state of mind, then, if a challenge is brought to the existence of the subjective jurisdictional fact, the Court's function is limited to determining whether the repository of power arrived at the state of mind in the way contemplated by the legislature. In Minister for Immigration and Citizenship v SZMDS, the High Court acknowledged that "the principles applicable where the jurisdictional fact is a state of satisfaction or opinion are traced back to the use by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd of the terms 'arbitrary, capricious, irrational' as well as 'not bona fide' to stigmatise the formation of an opinion upon which a statutory power was enlivened".

• [191] Bond J (as his Honour then was) in Niclin Constructions set out that the party challenging the existence of the subjective jurisdictional fact, will usually have to persuade the Court that the state of mind did not exist because it was not reached in the way contemplated by the legislature:

"[32] In the event of a challenge to the existence of that subjective jurisdictional fact, the party advancing the challenge will usually have to persuade the Court that the state of mind did not exist because it was not reached in the way contemplated by the legislature. In approaching that question, it is necessary to have at the forefront of one's mind the observations made by White JA in Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd ... (emphasis added):

... the enquiry should focus more on whether the adjudicator has performed the function demanded by [the Act] and less on pursuing elusive synonyms, keeping always in mind that the legislative intent dictates a person with recognised expertise in the area be selected for the task by an informed body and this, necessarily, facilitates the rapid decision making required."

• [192] Tomkins makes three submissions in support of their position that the existence of the reference date is a subjective jurisdictional fact:

(a) the object and policy of the BIF Act;

(b) the resolution of complex factual and legal issues; and

(c) consistency between the interpretation of s 84(2)(a)(i) and (ii).

• [193] Tomkins submits that the object of the BIF Act is best achieved if the requirement in s 67(2) of the BIF Act, that the contract has been terminated, is a subjective jurisdictional fact.
• [194] If the existence of a reference date is a subjective jurisdictional fact, then the Court's task does not involve disturbing the adjudicator's decision, but instead focuses on the process of the adjudicator's reasoning. Such a process, Tomkins submits, is consistent with the object of the BIF Act.
• [195] Tomkins refers to the policy of the BIF Act to support its view that the existence of a reference date (relying as it does in this case on a valid termination of the Contract to which the waiver finding was relevant) is to be treated as a subjective jurisdictional fact as:

(a) the object of the BIF Act is to provide a quick procedure for interim progress payments so as to avoid cashflow interruptions to the business of construction contractors, whilst preserving parties' rights under the construction contract.

(b) the BIF Act provides for a "quick and inexpensive" interim procedure for builders to be paid,[30] it is an important consideration for construing whether provisions of the Act give rise to jurisdictional facts.[31]

(c) it would undermine that object if s 67(2) were construed as rendering an adjudicator's decision open to challenge on the grounds of alleged jurisdictional error in each and every case in which there is a dispute about the validity of the termination of the contract.

• [196] Accordingly, Tomkins submits that it serves the object of the Act if an adjudicator's decision as to the validity of termination, provided it is lawfully made, is not reviewable by the Court considering the issue de novo.[32]
• [197] Tomkins notes that the question of whether a reference date existed involves the adjudicator resolving complicated factual and legal issues bearing upon whether Tomkins' termination of the Contract was valid.[33] Such complexity is a relevant consideration and Tomkins submits, militates against it being an objective jurisdictional fact. To this end, Tomkins refers to Forme Two where Hindman J observed:

"[41] ... it is generally accepted that a requirement stipulated in the Act is more amenable to being construed as a category 1 matter if it 'is readily determined and little inconvenience is generally caused by identifying it as an essential precondition to the exercise of the relevant powers'".[34]

• [198] Tomkins notes that York challenges the adjudicator's decision under s 84(2)(a)(i):

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

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

(ii) whether the application is frivolous or vexatious."

• [199] In Niclin Constructions, it was determined that an adjudicator's decision under s 84(2)(a)(ii) (as to whether an adjudication is frivolous or vexatious) was a subjective jurisdictional fact.[35]
• [200] Tomkins states that there is no distinction between s 84(2)(a)(i) and (ii) and that there is nothing in the statutory language that would justify interpreting one sub-section of s 84(2)(a) as involving only objective jurisdictional facts and the other only subjective jurisdictional facts.
• [201] Therefore, just as an adjudicator is required to have "a particular state of mind, namely, the state of mind of having decided that the application is not frivolous or vexatious" under s 84(2)(a)(ii), Tomkins submits that s 84(2)(a)(i) likewise requires an adjudicator to "have the state of mind of having decided that" he or she has jurisdiction to adjudicate the application.

• [202] The text and structure of the BIF Act supports the conclusion that the existence of a reference date is an objective jurisdictional fact.
• [203] The requirement in s 84(2)(a)(i) of the BIF Act, that the adjudicator is required to determine his or her jurisdiction, does not mean that the existence of a reference date becomes a matter for subjective determination. The adjudicator is required, before deciding an application, to determine that jurisdiction exists.
• [204] An erroneous determination by an adjudicator that there is a reference date does not give the adjudicator a power he or she otherwise does not have.
• [205] In Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd [2016] HCA 52; (2016) 260 CLR 340, the majority (Kiefel, Bell, Gageler, Keane and Gordon JJ) noted that:

"[41] There is no dispute between the parties that service of a payment claim under s 13(1) of the Act[36] is an essential precondition to taking subsequent steps in the procedure set out in Pt 3 of the Act. There is accordingly no dispute that, unless a payment claim answering that description is served, there can be no adjudication application and hence no adjudication within the jurisdiction conferred by s 22 of the Act.[37] That shared understanding of the relationship between ss 13(1) and 22 is undoubtedly correct."

• [206] Sections 70 and 75 in the BIF Act (the equivalent being ss 8[38] and 13 in the NSW Act), state that the right to a progress payment arises from "each reference date" under the contract, and that a payment claim may be made by each person who is or claims to be entitled to a progress payment.
• [207] The majority in Southern Han, in considering the equivalent New South Wales sections of ss 70 and 75 of the BIF Act, considered the existence of a reference date is a precondition to the making of a valid payment claim: [39]

"[61] The construction of s 13(1) consonant with the structure of the Act is accordingly that advanced by Southern Han. The description in s 13(1) of a person referred to in s 8(1) is of a person whom s 8(1) makes entitled to a progress payment. Section 8(1) makes a person who has undertaken to carry out construction work or supply related goods and services under a construction contract entitled to a progress payment only on and from each reference date under the construction contract. In that way, the existence of a reference date under a construction contract within the meaning of s 8(1) is a precondition to the making of a valid payment claim under s 13(1).

[62] Section 13(1) correspondingly produces the result that a document purporting to be a payment claim that is not in respect of a reference date is not a payment claim under the Act. The document is ineffective in either case to trigger the procedure established by Pt 3."

• [208] Accordingly, there can be no application without a valid reference date, and therefore a valid payment claim. To put it another way, a valid payment claim cannot arise without a valid reference date.
• [209] Brolton Group Pty Ltd v Hanson Construction Materials Pty Ltd [2020] NSWCA 63 addressed the proposition (which was accepted) that the existence of an available reference date is an objective fact to be found by a court, where necessary, rather than an opinion or finding that can be made erroneously by the adjudicator:

"[43] The first part of proposition 1 can be accepted; the existence of a valid reference date is an objective fact to be found by the Court where necessary: Southern Han at [44]. The balance of the propositions should be rejected. The difficulty with these propositions is that they ignore the difference between the task the adjudicator was authorised and required by s 22(1) to undertake, and the task which the adjudicator in fact undertook and performed in this case.

[48] In summary, Southern Han establishes that a payment claim with an available reference date answering the description in s 13(1) of the Act is a precondition which enlivens the exercise of the adjudicator's statutory power to embark upon the adjudication. The available reference date under the construction contract serves to define the payment claim which is the subject of the adjudication application referred. If the adjudicator addresses a differently defined or described payment claim, the adjudicator is not exercising the jurisdiction in s 22(1) to determine the payment claim in respect of which the statutory power of adjudication is conferred on the adjudicator. That is what occurred in the present case. Hence, there was no error by the primary judge in finding that the determination is void on the ground of jurisdictional error."

• [210] I note Tomkins' reliance on Niclin Constructions,[40] where the requirement in s 84(2)(a)(ii) of the BIF Act (namely that the adjudicator determine whether an application was frivolous or vexatious) was held to be a subjective jurisdictional fact[41] and consistency thus requires for s 84(2)(a)(ii) to also be a subjective jurisdictional fact.
• [211] However, determining whether an application is vexatious or frivolous is very different to determining whether a reference date exists. The former requires that an adjudicator form a view about those matters; it does not properly require an objective determination of whether the application is in fact vexatious.
• [212] Such a distinction is important. The difference between a subjective jurisdictional fact and an objective jurisdictional fact was explained in Niclin Constructions by Bond J (as his Honour then was) in this way:

"[25] If the precondition to an exercise of power is the existence of an objective jurisdictional fact, then, if a challenge is brought to the existence of the jurisdictional fact, the Court's function is to determine de novo whether the objective fact existed. The Court determines the question upon the evidence before it, without being limited to the probative material before the repository of power. This is the course which SHA invited me to take.

[26] On the other hand, if the precondition to the exercise of the power is that the repository of power has formed a particular state of mind, then, if a challenge is brought to the existence of the subjective jurisdictional fact, the Court's function is limited to determining whether the repository of power arrived at the state of mind in the way contemplated by the legislature. In Minister for Immigration and Citizenship v SZMDS , the High Court acknowledged that "the principles applicable where the jurisdictional fact is a state of satisfaction or opinion are traced back to the use by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd of the terms 'arbitrary, capricious, irrational' as well as 'not bona fide' to stigmatise the formation of an opinion upon which a statutory power was enlivened."

• [213] The right to apply for adjudication only arises where there is a valid payment claim, by reason of ss 79 and 88 of the Act.
• [214] In Southern Han, the court noted that a document purporting to be a payment claim that is not in respect of a reference date is not a payment claim under the Act.
• [215] That is not a question of a state of mind or state of satisfaction. It is a question of the facts necessary to found jurisdiction.
• [216] In Watkins Contracting, Brown J (as her Honour then was) considered the consequence of when no reference date existed:

"[97] Watkins did not seek to have the Court determine whether as matter of fact the contract had been terminated and therefore that no reference date existed. In the case of a jurisdictional fact, that is one of the rare cases where the Court may determine whether the decision maker is correct in finding that a precondition of its jurisdiction was satisfied. In this regard, although I do not need to determine the matter, I do not consider that the effect of s 25(3)(a) of the Act changes the nature of the Court's power of review in relation to a jurisdictional fact."

• [217] In Saville (T/as China Sourcing Services) v Hallmarc Construction Pty Ltd [2015] VSCA 318; (2015) 47 VR 177, the Victorian Court of Appeal noted the consequences of an objective jurisdictional fact:

"[59] If an issue amounts to a jurisdictional fact it is reviewable by a superior court to determine if the decision maker was correct in finding that the pre-condition of its jurisdiction was satisfied and thus that its statutory power was enlivened. Moreover, it is reviewable, in effect, de novo, that is, by reference to the evidence available to the reviewing court. This was confirmed in Enfield_:_

where the question is whether the decision-maker has erred as to the jurisdictional facts ... that question has to be answered by the court in which it is litigated upon the evidence before that court.

[60] Where the jurisdictional fact is the existence of a fact, the reviewing court can determine on the balance of probabilities whether the fact exists.

[61] An assumption of jurisdiction when the statutory conditions precedent for the exercise of that jurisdiction are not satisfied is a jurisdictional error resulting, relevantly, in the decision becoming a nullity as 'a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all."

• [218] I acknowledge Tomkins' submissions about the object and policy of the BIF Act that a requirement stipulated in the Act:

(a) is more amenable to being construed as an "objective jurisdictional fact" if it "is readily determined and little inconvenience is generally caused by identifying it as an essential precondition to the exercise of the relevant powers";[42]

(b) is more amenable to being construed as a "subjective jurisdictional fact" if it involves consideration of a factual question which might be quite complex; and[43]

(c) is more amenable to being construed as a "subjective jurisdictional fact" if its determination benefits from the specialised knowledge or expertise of an adjudicator.[44]

• [219] The determination of whether a contract has been terminated may be inherently complex and, in some cases, may:

(a) not easily meet the description of a requirement which "is readily determined and little inconvenience is generally caused by identifying it as an essential precondition to the exercise of the relevant powers"; and

(b) involve consideration of a factual question which might be quite complex, such as whether there has been a breach of the obligations in a building contract (e.g., here, whether there were breaches of the design obligations).

• [220] However, as Hindman J noted in Forme Two, "that in some cases the issue might be factually complex is not determinative".[45]
• [221] The importance of a reference date in the adjudication procedure established under the BIF Act cannot be overemphasised.[46] It is a precondition to the making of a valid payment claim.[47]
• [222] As to whether the determination of whether a contract has been terminated would benefit from the specialised knowledge or expertise of an adjudicator, I note the following observations of Palmer J in Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140:

"[76] A payment claim and a payment schedule are, in many cases, given and received by parties who are experienced in the building industry and are familiar with the particular building contract, the history of construction of the project and the broad issues which have produced the dispute as to the claimant's payment claim. a payment claim and a payment schedule must be produced quickly; much that is contained therein in an abbreviated form which would be meaningless to the uninformed reader will be understood readily by the parties themselves. A payment claim and a payment schedule should not, therefore, be required to be as precise and as particularised as a pleading in the Supreme Court. Nevertheless, precision and particularity must be required to a degree reasonably sufficient to apprise the parties of the real issues in the dispute".[48]

• [223] In EQ Constructions Pty ltd v A-Civil Aust Pty Ltd [2021] NSWSC 1604, Williams J noted that "(A)dditional areas of potential complexity include that matters of specialist judgment may be involved in assessing the nature or character of the work and that assessment may in turn affect the determination about when some of the construction work to which the payment claim relates was last carried out".[49]
• [224] On some occasions the determination of whether a contract has been terminated may be assisted by the adjudicator's specialised knowledge. However, it will often require consideration of several factors, including the terms of the contract and the acts of the parties within a legal framework, matters that may be beyond the adjudicator's specialised knowledge.
• [225] I do not consider that the determination of the termination of the contract is within the scope and nature of a payment claim that benefits from an adjudicator's specialised knowledge to the extent that it favours the existence of the reference date to be a subjective jurisdictional fact.
• [226] The adjudicator cannot subjectively bestow jurisdiction on themselves, and an adjudicator does not have jurisdiction at all, unless there is a reference date.
• [227] The fact that, by s 67(2) a reference date might arise by operation of termination of the contract does not change that fact. The adjudicator still does not have jurisdiction unless the relevant preconditions are met. That is so, even if, on occasion (such as this one) the question of termination might be contested.
• [228] Section 70 is the central provision of the BIF Act insofar as it relates to the adjudication procedure as it:

(a) grants the entitlement to progress payments, this being one of the primary ways that the main purpose of the BIF Act is sought to be achieved.[50]

(b) provides that it is 'from' a reference date that a person is entitled to a progress payment.[51]

• [229] The language in s 70 is expressed objectively; it is not expressed by reference to the 'opinion' of, for example, the adjudicator appointed to adjudicate the relevant adjudication application.
• [230] In Acciona,[52] Bond J (as his Honour then was) held that the valid exercise of an adjudicator's jurisdiction is conditioned on the decision having complied with the "basic and essential" statutory requirements.[53] Whilst his Honour did not expressly refer to the existence of a reference date as one of these "basic and essential" requirements, the service by the claimant on the respondent of a payment claim was held to be a requirement.[54] This has the same result. A document purporting to be a payment claim that is not made from a reference date is not a 'payment claim' under the Act.[55]
• [231] It follows from the remarks in Southern Han and Acciona that the valid exercise of an adjudicator's jurisdiction is conditioned on the decision having been made in relation to a valid payment claim, which, in turn, requires the claim to have been made from a reference date.
• [232] The question of whether a reference date exists is not a question that the adjudicator is entitled to get wrong.
• [233] The adjudicator's jurisdiction was conditioned on Payment Claim 36 having been made from a reference date, not just one that existed in the opinion of the adjudicator.
• [234] On the proper construction of the BIF Act, the existence of a reference date for Payment Claim 36 (or, for that matter, any payment claim under the BIF Act) is an objective jurisdictional fact.

Separate question 3: If the answer to separate question 2 is a "subjective jurisdictional fact", is the Applicant entitled to the relief claimed in paragraph 1 of the Originating Application?

• [235] This question does not arise because I have found that the answer to separate question 2 is an "objective jurisdictional fact".

• [236] As foreshadowed at the hearing with the parties, the parties will have 14 days to provide a form of orders to reflect these reasons.
• [237] I will also give the parties an opportunity to consider these reasons before they are required to file and serve short written submissions on the question of costs. Within 14 days the parties are to agree on a timetable for the exchange of written submissions and provide this timetable to the Court.
• [238] If it is appropriate, then I will deal with the question of costs on the papers, unless either party requests a hearing.
• [239] To facilitate this process, I will adjourn the question of costs to a date to be fixed.

• [240] The applicant and the first respondent must submit a draft order within 14 days that reflects these reasons.
• [241] Within 14 days, the applicant and the first respondent are to agree on a timetable for the exchange of written submissions and provide this timetable to the Court.
• [242] The question of costs is adjourned to a date to be fixed.

[1] Tomkins is the first respondent. The second and third respondents did not participate in the proceedings.

[2] Underlining as contained in the adjudication decision.

[3] Allianz [2022] HCA 38; (2022) 277 CLR 445, 467 at [28] (Kiefel CJ, Edelman, Steward, and Gleeson JJ).

[4] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, at 585 (Mason J).

[5] Demex Pty Ltd v McNab Building Services Pty Ltd [2023] NSWCA 261; (2023) 113 NSWLR 282, 288 at [22] (Kirk JA, Mitchelmore and Adamson JJA agreeing).

[6] JKC Australia LNG Pty Ltd v Inpex Operations Australia Pty Ltd [2018] NTCA 6; (2018) 334 FLR 314, at [41], approved by Ball J in Rhomberg Rail Australia Pty Ltd v Concrete Evidence Pty Limited [2019] NSWSC 755, at [17].

[7] See also Watkins Contracting Pty Ltd v Hyatt Ground Engineering Pty Ltd [2018] QSC 065, at [64] (Brown J, as her Honour then was).

[8] John Holland [2009] QSC 205; [2010] 1 Qd R 302, at 320 [50].

[9] John Goss Projects Pty Ltd v Leighton Contractors Pty Ltd (2006) 66 NSWLR 707, at [42] (McDougall J) ("John Goss"), approved by Applegarth J in John Holland [2009] QSC 205; [2010] 1 Qd R 302, at [35].

[10] ABC Glass & Aluminium Pty Ltd v Nik Nominees Pty Ltd [2019] QSC 171, at [16] (Mullins J, as her Honour then was); Watkins Contracting [2018] QSC 065, at [64] (Brown J, as her Honour then was).

[11] John Goss (2006) 66 NSWLR 707, at [42] (McDougall J), approved by Applegarth J in John Holland [2009] QSC 205; [2010] 1 Qd R 302, at [35].

[12] John Holland [2009] QSC 205; [2010] 1 Qd R 302, at [37].

[13] John Holland [2009] QSC 205; [2010] 1 Qd R 302, at [40].

[14] At [9]-[34] (Kirk JA, Mitchelmore and Adamson JJA agreeing).

[15] Pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW).

[16] Paragraph [32] in Demex [2023] NSWCA 261; (2023) 113 NSWLR 282 has been inter alia:

(a) referred to, and applied, by the New South Wales Court of Appeal in the recent decisions of A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2024] NSWCA 7, at [2] and [4] (Leeming JA) and [36] (Mitchelmore JA, Leeming and White JJA agreeing) and Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd [2025] NSWCA 49, at [74] and [117] (Payne JA, Gleeson JA and Griffiths AJA agreeing); and

(b) extracted in part and applied by this Court in the context of the BIF Act in Chevron Park Pty Ltd v Groupline Constructions Pty Ltd [2024] QSC 202, at [85] (Treston J).

[17] ABC Glass [2019] QSC 171, at [24] (Mullins J, as her Honour then was).

[18] Supreme Court Proceeding BS11674/24. The injunction was granted by Justice Treston on 4 September 2024 (Court doc 6).

[19] See paragraph 294 and 322 of the adjudicator's decision.

[20] JKC Australia [2018] NTCA 6; (2018) 334 FLR 314, at [41], approved by Ball J in Rhomberg Rail Australia [2019] NSWSC 755, at [17].

[21] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152, at [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

[22] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152, at [15] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

[23] [2005] NSWCA 228, at [41].

[25] Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd [2016] HCA 52; (2016) 260 CLR 340, at [61]. See also Low v MCC Pty Ltd [2018] QSC 6, at [11] (Jackson J); Watkins Contracting [2018] QSC 65, at [54] (Brown J); National Management Group Pty Ltd v Biriel Industries Pty Ltd (t/as Master Steel) [2019] QSC 219, at [47] (Wilson J).

[26] See Niclin Constructions [2020] QSC 307, at [25], citing City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, at [38], [50]-[51] and Bhusal v Catholic Health Care [2017] NSWSC 838, at [53]).

[27] Watkins Contracting [2018] QSC 065, at [62] (Brown J).

[28] Niclin Constructions [2020] QSC 307, at [26].

[29] Niclin Constructions [2020] QSC 307 at [23].

[30] Lendlease Building Pty Ltd v BCF Airport Systems Pty Ltd [2024] QSC 164, at [103] (Sullivan J).

[31] York Property Holdings Pty Ltd v Tomkins [2025] QSC 44, at [20] (Treston J).

[32] This submission has been adapted from EQ Constructions Pty Ltd v A-Civil Aust Pty Ltd [2021] NSWSC 1604, at [51] per Williams J.

[33] Forme Two [2025] QSC 96, at [42].

[34] Forme Two [2025] QSC 96, at [41], citing Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339, at [14] (Basten JA, Meagher and Leeming JJA agreeing).

[35] Niclin Constructions [2020] QSC 307, at [31].

[36] Section 13(1) of the NSW Act in that case is the equivalent of s 75(1) in the BIF Act, providing for the right to make a payment claim.

[37] Section 22 of the NSW Act is the equivalent of s 88 in the BIF Act, providing that the adjudicator is to determine the amount of the payment claim.

[38] Section 8(1) of the NSW Act, which is referred to in s 13(1), provides that "on and from each reference date under a construction contract" a person undertaking to carry out construction work is entitled to a progress payment. The equivalent provision in the BIF Act is s 70, which provides that, from "each reference date under a construction contract", a person is entitled to a progress payment if the person has carried out construction work or supplied related goods or services.

[39] Southern Han [2016] HCA 52; (2016) 260 CLR 340, at [61]-[62].

[40] Niclin Constructions [2020] QSC 307.

[41] Niclin Constructions [2020] QSC 307, at [31].

[42] Forme Two [2025] QSC 96, at [41] (Hindman J); EQ Constructions [2021] NSWSC 1604, at [42] (Williams J).

[43] Forme Two [2025] QSC 96, at [41]-[42] (Hindman J); EQ Constructions [2021] NSWSC 1604, at [45] and [47] (Williams J), citing TWT Property Group Pty Ltd v Cenric Group Pty Ltd [2020] NSWSC 72, at [104]-[106] (Stevenson J).

[44] Forme Two [2025] QSC 96, at [43] (Hindman J); EQ Constructions [2021] NSWSC 1604, at [47]-[48] (Williams J), citing Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140, at [76] (Palmer J).

[46] See, for example, Procon Developments (Australia) Pty Ltd v Hi-Cal Bricklaying [2025] QSC 67, in which the reference date was described by Bowskill CJ at [8] as "an important element of the adjudication procedure".

[47] Southern Han [2016] HCA 52; (2016) 260 CLR 340, at [2] and [61] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).

[48] Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140, at [76].

[50] Building Industry Fairness (Security of Payment) Act 2017 (Qld) s 3(2)(b).

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

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

[53] Acciona [2020] QSC 133; (2020) 4 QR 410, at [34].

[54] Acciona [2020] QSC 133; (2020) 4 QR 410, at [34(b)].

[55] Southern Han [2016] HCA 52; (2016) 260 CLR 340, at [62].