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[2025] QCA 204
procedural. The application for interim injunctive relief was dismissed: order and [36].
York wanted to stop Tomkins receiving money held in escrow while York challenged court orders requiring payment of an adjudicated construction claim. The Court considered York's appeal grounds, the evidence of possible non-repayment, the effect of existing restraints on other sums, the BIFA's cash-flow purpose and the parties' escrow deed. It considered the appeal weak and the evidence insufficient to establish a real repayment risk. The statutory and contractual arrangements supported payment to Tomkins, and the requested restraints would further delay substantial sums. The application was dismissed.
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2,281 words · generated 07/10/2026
York Property Holdings Pty Ltd, as trustee for York Property Trust, and Tomkins Commercial & Industrial Builders Pty Ltd had agreed that Tomkins would carry out work on the Midwater apartment building at Main Beach. The estimated contract price was $128.3 million ([1]). They also agreed that York would pay $25 million to HWL Ebsworth Lawyers (HWLE), to be held in an interest-bearing escrow account and disbursed under a separate deed ([2]).
1 cited instrument linked from this judgment.
The escrow deed specified the documents on which payment could be requested. They included a payment schedule and statutory declaration, a payment claim and statutory declaration, an adjudication decision, or a court judgment or order. HWLE was to pay the unpaid amount identified in the relevant document within ten business days of Tomkins’ written request ([2]). If money was paid out, York was required to replenish the escrow balance within five business days ([3]).
The immediate dispute concerned the “PC32 sum”. On 17 October 2025, the primary judge made orders following an adjudication decision under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIFA). The judgment describes the sum as either $4,764,178.27 or $5,240,596.10, and says York was also liable for interest at 14.39 per cent per annum ([4]). The judgment identifies the adjudication decision as having been made on 22 September 2024 ([4]).
Tomkins requested payment from HWLE on 17 October 2025. York had filed an appeal against the primary judge’s orders on 21 October 2025. It applied to the Court of Appeal for interim orders that would stop HWLE paying the PC32 sum and interest and prevent Tomkins from enforcing related statutory and contractual rights while the appeal was pending ([5]).
Bradley JA dismissed the application. The decision was about interim relief, not the final determination of York’s appeal. The Court did not decide the appeal grounds; it assessed their apparent strength as one part of deciding whether payment should be restrained.
The Court first considered York’s appeal grounds. The primary judge had concluded that the adjudicator failed to consider matters required by BIFA s 88(2). In particular, the primary judge found that the adjudicator had not found that the façade work was defective, but only that York had concerns about possible defects. The primary judge also found no evidence of the estimated rectification cost, and considered it illogical to use an amount previously assessed as payable for work completed as the estimated cost of rectification ([6]-[7]).
York advanced five grounds challenging those conclusions. In outline, it contended that the adjudicator could have considered the relevant material, that a finding of defective work was implicit, that a supervisor’s submission supported the rectification figure, that the figure reflected York’s proposed deduction, and that any valuation error was within jurisdiction ([8]). Bradley JA did not accept Tomkins’ submission that there was no serious question to be tried. But the Court described York’s appeal as weak, with apparently poor prospects, and identified the difficulty in relying on implied findings that differed from the adjudicator’s express findings ([10]-[11]).
The evidence about possible non-repayment did not establish a real risk that Tomkins would be unable to repay money if York ultimately succeeded. York relied on Tomkins’ changed Queensland Building and Construction Commission (QBCC) licence category, project trust account information and litigation with three other parties ([12]-[18]). The Court considered that the lower licence category had an obvious possible explanation: York had terminated the Midwater contract in 2024, so Tomkins was no longer performing that large project ([13]-[15]). The Court also reasoned that the absence of recently opened project trust accounts and a lower licence category could indicate reduced exposure, not increased repayment risk ([19]).
The other disputes did not materially establish an inability to repay. The Court said the evidence did not support York’s contention that there was a real risk of non-repayment, and that the disputes with two subcontractors and one principal raised no particular concern ([19]). It also found no evidence that Tomkins had restructured its affairs or taken steps to increase the risk of insolvency or non-payment ([20]-[21]).
The Court then considered the consequences for Tomkins if the restraint were made. Tomkins would not have the use of more than $6 million that it claimed in May 2024 and said was owed for earlier work ([22]). The application also sat within a broader pattern of restraints affecting other sums. The judgment records that York owed Tomkins about $32 million, including the PC32 sum and substantial PC35 and PC36 sums, together with interest ([24]). Tomkins had been prevented from enforcing the PC35 and PC36 amounts while related applications and proceedings remained unresolved ([25]-[26]). Those circumstances were relevant to the prejudice caused by another restraint ([27]-[29]).
The statutory policy was central. Drawing on the policy discussed in RJ Neller Building Pty Ltd v Ainsworth, the Court treated the BIFA scheme as designed to preserve cash flow to builders despite the possibility that a contractor may later have to refund money ([30]). It also referred to Martinus Rail Pty Ltd v QUBE RE Services (No. 2) for the proposition that the principal bears the relevant repayment risk under a similar statutory scheme, and that considerable caution is required when an injunction is sought because a payment may later be unrecoverable ([31]). The Court stated that significant doubt about a future ability to repay is insufficient, in light of the statutory policy ([31]).
The parties’ deed pointed in the same direction. It expressly allowed payment on production of an adjudication decision or court order. Bradley JA said that restraining payment would have the effect of varying the parties’ agreed risk allocation, even though the deed did not itself exclude the possibility of court orders ([33]). The Court also noted that Tomkins’ claim was supported not only by the adjudicator’s decision, but by the primary judge’s orders after review of the decision ([34]).
Taking these matters together, the weak apparent appeal prospects did not outweigh the statutory and contractual entitlement to payment, the lack of proven repayment risk, and the practical consequences of another restraint. The Court concluded that York had not shown sufficient likelihood of success to justify the orders it sought ([36]).
The judgment does not purport to change the law governing BIFA adjudication or to determine the final legal effect of the Atkin decision. It addresses an application for interim restraints pending appeal. Its reasoning applies the BIFA policy, as described through earlier authorities, to the balance of convenience on the evidence before the Court.
The judgment’s account of the pre-existing approach is that security-of-payment legislation prioritises cash flow to construction contractors, even though a principal may later establish that some or all of the money should be repaid. The risk of a contractor’s inability to repay is described as one the legislature has, prima facie, allocated to the owner or principal ([30]-[32]). Neller is cited for that policy, and Martinus Rail is cited for the caution required when a party seeks a stay or injunction based on a possible future repayment problem ([30]-[31]).
The escrow deed supplied a separate contractual context. On its face, the parties agreed to payment following an adjudication decision or court order, with replenishment by York after a disbursement ([2]-[3]). The Court considered that arrangement consistent with the statutory allocation of risk ([33]). It did not decide whether the deed could never be affected by an injunction. Rather, it treated the deed as a relevant consideration against the specific relief sought.
After the decision, the practical point established by this ruling is limited to the interim application: a repayment-risk argument needs evidence capable of establishing a real risk, and it must be weighed against the cash-flow policy, contractual arrangements and prejudice to the payee. The Court found that the evidence in this case did not meet that standard ([19]-[21], [31]-[36]). The judgment does not decide what evidence would suffice in another case or what the outcome of York’s underlying appeal would be.
At [11], Bradley JA described York’s appeal as “a weak one” with prospects that “appear poor”. In plain English, the Court’s preliminary view was that York faced substantial difficulties on its grounds of appeal. That was not a final decision on those grounds. The Court considered the appeal’s apparent strength only as part of the interim-relief assessment.
At [19], the Court said the evidence did not allow it to conclude that there was a real risk Tomkins would not repay an amount due after the appeal. In plain English, the information about licences, project trust accounts and litigation did not establish that Tomkins was likely to be unable to repay. The Court also gave an alternative interpretation of some evidence: fewer new project trust accounts and a lower licence category might reflect reduced exposure ([19]).
At [21], the Court stated that there was “no risk” of inability to repay, apart from the usual risk faced by every non-residential principal under the BIFA scheme. This expresses the Court’s assessment of the evidence in this application. It should not be read as a general finding about Tomkins’ financial position beyond the material before Bradley JA.
At [32], the Court said that granting an injunction would deny Tomkins a right of the nature described in Neller. In plain English, the statutory cash-flow policy was not peripheral: it was part of deciding whether to restrain payment. The Court considered that the requested order would postpone a form of payment the statutory scheme was intended to facilitate.
At [36], the Court summarised its conclusion: York had not shown “sufficient likelihood of success” to justify denying Tomkins its rights under statute and the escrow deed. In plain English, the application failed because the combination of York’s appeal prospects, the evidence and the consequences of withholding payment did not justify interim restraints.
This decision is most directly relevant to interim applications seeking to restrain payment of a construction adjudication amount under Queensland’s BIFA, particularly where the applicant relies on the possibility that the contractor may later be unable to repay. The Court’s analysis also concerned an escrow arrangement expressly permitting payment against an adjudication decision or court order ([2], [33]-[34]).
The key factual features were that a primary judge had already made orders requiring payment; an appeal had been filed; the applicant alleged repayment risk; and the evidence relied on did not establish a real risk of non-repayment ([4]-[5], [12]-[21]). The Court also considered the claimed amount in the context of other unpaid adjudicated sums and existing restraints affecting the contractor’s access to payment ([24]-[29]).
The decision may be less directly informative where there is substantially different evidence of financial distress, evidence of deliberate restructuring to defeat repayment, or an escrow deed with materially different terms. The Court expressly noted the absence of evidence that Tomkins had restructured its affairs or increased the risk of inability to meet its liabilities ([20]). It did not decide what different evidence or contractual language would require.
Nor does the decision determine the merits of a final challenge to an adjudication decision. The Court’s discussion of York’s appeal was preliminary and directed to the request for interim relief ([10]-[11], [36]).
The supplied judgment contains no later judicial treatment of York Property Holdings Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd. It was delivered on 24 October 2025, and the text provides no subsequent cases applying, distinguishing or criticising it. No conclusion about later treatment can therefore be drawn from this source alone.
The authorities referred to within the judgment are earlier authorities, not later treatment of this decision. Bradley JA referred to Neller for the policy of preserving construction cash flow, to Martinus Rail for the approach to repayment-risk arguments under a similar statutory scheme, and to BRB Modular and Karam Group in the footnote addressing the nature of the statutory payment right ([30]-[32]). The judgment’s own treatment of those authorities does not establish how subsequent courts have treated this 2025 decision.
The judgment leaves the merits of York’s appeal unresolved. Its five grounds challenged the primary judge’s conclusions about the adjudicator’s consideration of relevant material, the existence of an implicit finding of defective work, the evidentiary foundation and logic of the valuation, and jurisdictional error ([8]). Bradley JA did not decide those issues.
The decision also does not specify a general evidentiary threshold that will always establish a real risk of non-repayment. It explains why the particular evidence presented by York was inadequate and says significant doubt alone is insufficient in light of the statutory policy ([19]-[21], [31]). The kinds of evidence that might alter the balance in a materially different case remain open.
The Court did not determine the final interaction between every aspect of the BIFA and every possible escrow arrangement. It treated this deed’s payment provisions as consistent with the statutory risk allocation, but recognised that the requested orders were not excluded by the deed ([33]). The extent to which different contractual terms could affect the balance is not decided.
Finally, the judgment records that the appeal might not be listed for hearing during 2025 because of the Court’s calendar ([35]). It does not determine how the passage of time, changes in financial circumstances, or any later developments would affect a renewed application for interim relief. Those matters were not before the Court in the decision supplied.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: York Property Holdings Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd [2025] QCA 204
PARTIES: YORK PROPERTY HOLDINGS PTY LTD AS TRUSTEE FOR YORK PROPERTY TRUST / ABN 94 831 587 168 / (applicant) / v / TOMKINS COMMERCIAL & INDUSTRIAL BUILDERS PTY LTD / ABN 98 061 732 778 / (first respondent) / RICHARD ATKIN (ADJUDICATOR NO. J1182971) / (second respondent/ not a party to the application) / THE ADJUDICATION REGISTRAR / (third respondent/ not a party to the application) / HWL EBSWORTH LAWYERS / ABN 37 246 549 189 / (fourth respondent)
FILE NO/S: Appeal No 4789 of 2025 / SC No 14068 of 2024
DIVISION: Court of Appeal
PROCEEDING: Miscellaneous Application – Civil
ORIGINATING COURT: Supreme Court at Brisbane – [2025] QSC 261 (Crowley J)
DELIVERED ON: 24 October 2025
DELIVERED AT: Brisbane
HEARING DATE: 24 October 2025
JUDGE: Bradley JA
ORDER: The application is dismissed.
CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – where the applicant agreed that the first respondent would carry out works for the construction of an apartment building at Main Beach – where the parties agreed the applicant would pay a sum to the fourth respondent to be held in an escrow account and to be disbursed by the fourth respondent on terms set out in an escrow deed agreed to by the applicant and the first and fourth respondents – where the fourth respondent may disburse payments from the escrow account to the first respondent within ten business days of the first respondent making a written request for payment accompanied by a relevant document, such as a court judgment or order – where the first respondent obtained orders from the primary judge on 17 October 2025 that require a sum to be paid by the applicant to the first respondent pursuant to an adjudication decision made under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (the Act) on 22 September 2025 – where the applicant is also obliged to pay the first respondent interest on that sum – where the first respondent made a written request for payment to the fourth respondent on 17 October 2025 following the delivery of the primary judge’s reasons – where the applicant has filed a notice of appeal against the decision of the primary judge – where the applicant seeks interim relief from the orders of the primary judge pending the outcome of the appeal, such that the fourth respondent would be restrained from paying the sum to the first respondent and the first respondent would be prevented from enforcing its contractual and statutory rights with respect to the adjudication decision and the primary judge’s orders – whether the Court should grant the applicant injunctive relief pending the determination of the appeal to restrain the fourth respondent from disbursing the sum requested by the first respondent, and to restrain the first respondent from taking steps to enforce the decision of the primary judge / Building Industry Fairness (Security of Payment) Act 2017 (Qld) / BRB Modular Pty Ltd v AXW Constructions Pty Ltd (No 2) [2015] QSC 222, considered / Karam Group Pty Ltd v Earthmoving Contractors Pty Ltd (2021) 7 QR 164; [2021] QSC 10, cited / RJ Neller Building Pty Ltd v Ainsworth [2009] 1 Qd R 390; [2008] QCA 397, considered
COUNSEL: M A Ambrose KC, with T W Ambrose, for the applicant / D S Piggot KC, with J E Menzies, for the first respondent / No appearance for the fourth respondent
SOLICITORS: Holding Redlich Lawyers for the applicant / Thompson Geer for the first respondent / No appearance for the fourth respondent
BRADLEY JA: The appellant (York) and the first respondent (Tomkins) agreed that Tomkins would carry out works for the construction of an apartment building at Main Beach (called “Midwater”) and York would pay Tomkins for that work. They estimated the contract price as $128,300,000.
These parties also agreed that York would pay $25 million to HWL Ebsworth Lawyers (HWLE) to be held in an interest-bearing 24-hour call escrow account and to be disbursed by HWLE on terms set out in a separate escrow deed made by York, Tomkins and HWLE. By the escrow deed, HWLE must disburse payments from the escrow account to Tomkins within ten business days of Tomkins making a written request for payment accompanied by a copy of any of four relevant groups of documents: a payment schedule and statutory declaration; a payment claim and statutory declaration; an adjudication decision; or a court judgment or order. HWLE is to pay Tomkins the unpaid amount identified in the payment schedule, payment claim, adjudication decision, judgment or order.
If HWLE disburses an amount from the escrow account, then the escrow deed requires York to pay an equivalent amount to HWLE within five business days, for HWLE to deposit into the escrow account to “replenish” or “top-up” the balance to $25 million.
The present circumstances
On 17 October 2025, Tomkins obtained orders (the PC32 orders) from the Court, the effect of which is that $4,764,178.27 or $5,240,596.10 (the PC32 sum) is payable by York to Tomkins pursuant to an adjudication decision made on 22 September 2024 (the Atkin decision) under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIFA). York is obliged to pay Tomkins interest on the PC32 sum, calculated at 14.39% per annum. This interest may be up to $1 million, if calculated from 18 June 2024, less if calculated from 17 October 2025.
York seeks orders that would prevent HWLE from paying Tomkins the PC32 sum and any interest, in accordance with the escrow deed, and orders that would prevent Tomkins from enforcing its contractual and statutory rights with respect to the Atkin decision and the PC32 orders. The orders sought would operate until the determination of York’s appeal against the PC32 orders, which was filed on 21 October 2025.
Is there a serious question to be tried?
On 17 October 2025, when the PC32 orders were made, Crowley J published reasons. The reasons indicate a clear basis for the PC32 orders.
His Honour found that the adjudicator did not make a finding that Tomkins’ work on the façade of the building was defective, only that York had concerns that it might be. His Honour found there was no evidence of the estimated cost of rectifying any defect in Tomkins’ work. There was only the amount previously assessed as the sum York must pay Tomkins for that work. His Honour concluded the adjudicator’s decision to reduce the amount payable by York to Tomkins by that sum, as if it were an estimate of the cost of rectifying any defective work, was illogical and incoherent. These findings led his Honour to conclude that the adjudicator had failed to consider the matters he was required to consider under s 88(2) of the BIFA.
York has filed a notice of appeal setting out five grounds on which it challenges the PC32 orders. In short, York’s appeal proceeds on these bases:that his Honour’s conclusion – that the adjudicator did not consider the matters he was required to consider under the BIFA, s 88(2), in particular the payment schedule, and all the submissions made by York, including attached relevant documents – was in error because it was possible the adjudicator had considered the matters and took the view of them that he should value Tomkins’ work in the manner he did and that there was evidence of an estimate of the cost of rectifying the supposed defective work;that his Honour’s finding – that the adjudicator only made a conditional finding as to defective work – was in error because the adjudicator impliedly found that Tomkins’ work on the façade of the building was defective;that his Honour’s finding – that there was no foundation for the adjudicator to find the estimated cost of rectifying Tomkins’ work was $4,764,178.27 – was in error because York’s supervisor had submitted that this figure was the estimated cost of rectifying the work;that his Honour’s conclusion – that it was illogical and incoherent for the adjudicator to decide that the value of the façade work was $6,802,706.65 and then value the estimated cost of rectifying Tomkins’ work on the façade at $4,764,178.27 – was in error because $4,764,178.27 was the value of the deduction York had proposed in the payment schedule and the material submitted under s 88(2)(d) of the BIFA; andthat his Honour’s conclusion – that the adjudicator’s valuation of the estimated cost of rectifying the façade involved a jurisdictional error – was in error because the valuation was open on the material before the adjudicator and so any error by the adjudicator in undertaking the valuation was within jurisdiction.
As presently articulated, to succeed in the appeal, York must persuade the Court of the correctness of all five of its grounds. If York fails on any of these grounds, the appeal would be dismissed.
For Tomkins it was submitted that there was not a serious question to be tried as to York’s grounds of appeal. I would not go so far.
Where does the balance of convenience lie?
For York it was submitted that “there is a basis to conclude that there is a real risk of non-repayment by Tomkins should the adjudicated amount be paid over to it.” I reject that submission. This “basis” is “the possible inability of Tomkins to meet its liabilities”. This is less than mere speculation.
York relied on a reduction in the category of Tomkins’ QBCC licence between 2021 and 2025. In 2021, Tomkins had a category 7 licence, which permitted it to earn over $240 million in revenue for construction work. In 2023 and 2024, Tomkins’ licence was category 3, which permitted it to earn up to $240 million in revenue for construction work. In 2025, Tomkins’ licence is category 5, which permits it to earn up to $120 million in revenue for construction work.
Tomkins entered into the contract with York to build Midwater for an estimated $128 million on 12 August 2021. On 10 September 2024, York notified Tomkins that it was terminating the contract for Midwater and allocating the remaining work to another or other builders. Although there is some dispute between the parties about the effect of this notice, it offers an obvious explanation for Tomkins having a higher category QBCC licence in 2021, when it took on the Midwater project, and a lower category licence in 2025, having ceased performing work on Midwater in 2024.
Over that period, another licenced builder, Tomkins Commercial & Industrial Builders Qld Pty Ltd (Tomkins Qld) has increased its QBCC licence category from category 2 in 2021, which permitted it to earn up to $800,000 in revenue for undertaking construction work, to category 3 in 2023, which permitted it to earn up to $12 million in revenue for construction work, to category 6 in 2024 and 2025, which permitted it to earn up to $120 million in revenue for construction work.
York also relied on searches that revealed that in 2022, Tomkins opened one project trust account for a head contract for construction work valued at $10 million or more. In 2023, Tomkins opened seven such project trust accounts, the last on 20 December 2023. It opened no such accounts in 2024 or 2025. The searches also revealed that Tomkins Qld opened one such project trust account in 2024 and two in 2025.
For York, it was submitted that this information indicates that Tomkins “has not won any new work in Queensland for which the contract sum is $10 million or more” since December 2023, and that Tomkins Qld has registered three new project trust accounts over the past two years.
York also relied on evidence that Tomkins is in litigation with three other parties. Brisbane Pre-Cast Pty Ltd, a sub-contractor with two disputed notices of subcontractor’s charges against Tomkins, has claimed about $1.7 million for damages for breach of contract. Tomkins has counterclaimed for about $2.1 million. 17 Mile Rocks Road Pty Ltd, a principal, is claiming about $1 million in restitution, damages and liquidated damages. Tomkins has filed a defence. Young Plumbing & Excavation Pty Ltd, likely a sub-contractor, is claiming about $132,000 for work. Tomkins has counterclaimed for about $480,000.
“[S]eeks to preserve the cash flow to a builder notwithstanding the risk that the builder might ultimately be required to refund the cash in circumstances where the builder’s financial failure, and inability to repay, could be expected to eventuate. Accordingly, the risk that a builder might not be able to refund moneys ultimately found to be due to a non-residential owner after a successful action by the owner must, I think, be regarded as a risk which, as a matter of policy in the commercial context in which the [act] applies, the legislature has, prima facie at least, assigned to the owner.”
The risk that a building contractor might not be able to refund monies ultimately found to be due to a principal after a successful civil action is a risk which Payne JA explained in Martinus Rail Pty Ltd v QUBE RE Services (No. 2) Pty Ltd [2025] NSWCA 49 at [292]–[297] and [300]–[303], is allocated to the principal under the similar statutory scheme in that State. There is a heavy burden on a party who seeks injunctive relief or a stay pending the outcome of proceedings on the basis that a payment may become unrecoverable due to the possible or even likely insolvency of the payee at a later date. Considerable caution should attend the grant of such an injunction or a stay, as to do so may detract from the primary purpose of the Act. A “significant doubt” about the ability to meet an award in the future is insufficient to award a stay in light of the evident policy of the statute.
The policy Parliament enacted in the BIFA characterises the nature of Tomkins’ right to pursue the recovery of the sum due to it. So, in assessing the balance of convenience, it is appropriate to consider that granting an injunction would deny Tomkins a right of the nature described by Keane JA in Neller.1
In addition to the statutory regime, here the relevant parties agreed by the escrow deed that Tomkins was entitled to be paid from the escrow account on presentation of an adjudication decision or a court order. In this way, the contractual arrangements also reflected the risk allocation applied by the statute. The orders sought by York, while not excluded by the escrow deed, would have the effect of varying the risk allocation the parties had agreed.
In the present context, Tomkins is entitled to be paid not simply because an adjudicator has made a decision, but also because the Court has determined that Tomkins is so entitled, having reviewed the adjudicator’s decision with the assistance of leading counsel for the parties over two days, and after reserving the matter for consideration.
For completeness, I note that there may be insufficient time presently available in the Court’s calendar to list York’s appeal for hearing this calendar year.
These considerations weigh heavily against making the orders sought by York. In addition, the prospects of York succeeding in the appeal are not such as to alter the balance of convenience. In short, York has not shown sufficient likelihood of success to justify denying Tomkins its right under statute and under the escrow deed and causing the practical consequences likely to flow from the order York seeks.2
York Property Holdings Pty Ltd
Tomkins Commercial & Industrial Builders Pty Ltd [2025] QCA 204
The application for interim injunctive relief was dismissed: order and [36].
A preliminary assessment of the strength of York’s case is that it is a weak one and that its prospects of success appear poor. It requires this Court to accept York’s contention that the adjudicator impliedly made certain findings (which differ from the adjudicator’s express findings) because the implied findings were necessary to sustain the adjudicator’s final decision. It also requires this Court to find error in his Honour’s conclusion that it was illogical and incoherent for the adjudicator to value or estimate the cost of rectifying possible defects in the façade by adopting the amount previously assessed as payable by York to Tomkins for completing 49.22% of the work involved in constructing the façade, when the adjudicator had decided the value of the façade work was $6,802,706.65.
None of this evidence permits the Court to conclude, as York submits, that “there is a real risk” that Tomkins will not repay any amount due to it under the PC32 orders, in the event that York succeeds in its appeal. The absence of registration of a new project trust account since 20 December 2023 and the lower licence category may indicate a reduced risk of non-repayment, as Tomkins is not taking on additional exposure to other liabilities or to larger projects. The disputes between Tomkins and two sub-contractors and one principal raise no particular concern.
Tomkins has not engaged in tactics to delay the determination of the respective rights and liabilities of the parties. It has done nothing to increase York’s exposure to a greater risk of it becoming insolvent. The evidence does not establish that Tomkins has restructured its business or financial affairs to increase a risk that it will not be able to meet its liabilities to York when the appeal is decided.
There is no risk that Tomkins will be unable to repay any amount due following the outcome of York’s appeal, save for the usual risk faced by every non-residential principal under the BIFA scheme.
As Counsel for York identified, Tomkins does not contend that it will suffer any specific loss or damage if restraining orders are made. Rather, Tomkins says it will be prejudiced by not having the use in the ordinary course of its business of the sum owed to it, and interest. It would be “held out” of more than $6 million, which it first claimed in May 2024, and which is owed to it for work performed prior to that date.
Tomkins also relies on other surrounding circumstances to make its case for prejudice. It submits that the cumulative effect of the orders sought, together with orders York has sought and obtained over the past year, will materially prejudice it, bearing in mind that all these amounts relate to progress payments which provide cash flow, “the lifeblood of the construction industry”.
Including the amounts due following the PC32 orders, York owes Tomkins about $32 million. The $26 million balance of this amount comprises:$12,736,532.22 (the PC35 sum) pursuant to an adjudication decision made on 14 February 2025 (the Lenz decision) under the BIFA about a payment claim Tomkins served on York on 29 August 2024, as adjusted by orders made by Treston J on 18 March 2025 (the PC35 orders), and interest of about $2 million, calculated at 14.40% per annum from 19 September 2024 to 22 October 2025; and$10,008,572.66 (the PC36 sum) pursuant to an adjudication decision made on 8 April 2025 (PC36 decision) under the BIFA, about a payment claim Tomkins served 16 October 2024 and interest of about $1.4 million, calculated at 14.41% per annum from 6 November 2024 to 22 October 2025.
Tomkins has been unable to enforce its contractual and statutory rights to be paid the $12,736,532.22 PC35 sum because: On 18 February 2025, upon York giving the usual undertaking as to damages, the Court restrained HWLE from disbursing any payment from the escrow amount in relation to a request based on the Lenz decision and restrained Tomkins from taking certain steps under the BIFA or the escrow deed in respect of or relying on the Lenz decision, pending York’s application to review the Lenz decision;On 18 March 2025, after the PC35 orders were made, York giving the usual undertaking as to damages, the Court extended the above restraining orders until 25 March 2025;On 25 March 2025, upon York giving the usual undertaking as to damages and undertaking to pay the PC35 sum into Court, this Court restrained HWLE from disbursing any payment from the escrow amount in relation to a request based on the Lenz decision or the PC35 orders and restrained Tomkins from taking certain steps under the BIFA or the escrow deed in respect of or relying on the Lenz decision or the PC35 orders, pending York’s appeal against the PC35 orders;On 21 May 2025, this Court heard York’s appeal against the PC35 orders, and reserved its decision; andThe decision remains reserved.
Tomkins has been unable to enforce its contractual and statutory rights to be paid the $10,008,572.66 PC36 sum, because:On 2 May 2025, upon York giving the usual undertaking as to damages, and amongst other undertakings, irrevocably undertaking to permit payment from the escrow amount of any damages assessed by the Court as payable as a result of the usual undertaking, and undertaking not to take any adverse steps against the escrow amount pending the determination of York’s application to review the Atkin decision, the Court restrained HWLE from disbursing any payment from the escrow account in relation to a request based on the Atkin decision and restrained Tomkins from taking certain steps under the BIFA or the escrow deed in respect of or relying on the Atkin decision, until trial of York’s application to review the Atkin decision or further order;On 30 May 2025, York’s application to review the Atkin decision was adjourned part heard to 4 August 2025, and the Court extended the above restraining orders until 4 August 2025;On 4 August 2025, the Court completed the hearing of York’s application to review the Atkin decision, reserved its decision, and extended the above restraining orders until further order; andThe decision remains reserved.
Today, York seeks restraining orders against HWLE and Tomkins in similar terms to those made in respect of the other decisions and orders, that would operate to prevent HWLE from paying Tomkins the PC32 sum in accordance with the escrow deed and prevent Tomkins from enforcing its contractual and statutory rights with respect to Atkin decision and the PC32 orders. The orders sought would operate until the determination of York’s appeal against the PC32 orders.
These surrounding circumstances are relevant to an assessment of the prejudice that Tomkins would suffer if the orders sought by York were to be made.
They are also relevant to the risk faced by York. York will only be “at risk” of being unable to recover the amount it owes Tomkins under the PC32 orders if York succeeds in every one of its applications and appeals against decisions and orders in Tomkins’ favour. If it fails on any of those challenges, subject to any further appeal, it will have to pay Tomkins more than $10 million. If it succeeds in the appeal against the PC32 orders, it might seek to set off the amount it will have paid Tomkins against the much larger sum it will have to pay Tomkins for either of the other claims.
The Court may take notice that the interruption of a builder’s cashflow may cause financial failure before the builder’s rights can be finally determined by the Court. Tomkins’ right to be paid the present amount arises under the adjudication process provided for in the BIFA. The policy behind the predecessor of that statutory scheme was considered by Keane JA in RJ Neller Building Pty Ltd v Ainsworth [2009] 1 Qd R 390 at [39]–[42]. His Honour explained that the legislation: