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[2025] QCA 251
respondent. The appeal was dismissed with costs. The primary judge's declaration that the adjudication decision was otherwise not affected by jurisdictional error and remained binding was not disturbed.
The Court of Appeal dismissed York's challenge to the adjudication decision. The adjudicator had authority to decide what amount, if any, York had to pay. Even if the adjudicator made a legal mistake in construing the contract or s 200, that did not by itself make the decision jurisdictionally invalid. Section 200 affects the substantive operation of contracts and the Act; it does not set a condition on the adjudicator's authority under s 88. The appeal was dismissed with costs.
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2,644 words · generated 07/10/2026
York Property Holdings Pty Ltd, as trustee for York Property Trust, was the principal under a written contract with Tomkins Commercial & Industrial Builders Pty Ltd for construction of an apartment building. The general conditions were in the form of AS 400-1997. The dispute arose under Queensland's Building Industry Fairness (Security of Payment) Act 2017 (Qld) (the Act), and concerned the relationship between the Act's progress-payment scheme and contractual clauses dealing with taking work out of a contractor's hands.
3 cited instruments linked from this judgment.
The contractual reference date was 28 August 2024. Tomkins served a payment claim the next day, seeking approximately $43 million. On 12 September 2024, York served a payment schedule certifying a negative amount as owing. York also served a notice under cl 39.4, purporting to take the remaining work out of Tomkins' hands (at [3]). Clause 39.4 allowed York, in specified circumstances, to take work out of the contractor's hands and suspend payment until the process under cl 39.6 had been completed. Under cl 39.6, after the work was completed, the Superintendent would assess the cost and certify the difference between that cost and the amount that would otherwise have been paid to the contractor (at [5]).
Tomkins applied for adjudication. The adjudicator decided that York had to pay approximately $16.8 million, later correcting the decision on 14 February 2025 (at [3]). In the adjudication, the adjudicator considered the interaction of cls 39.4 and 39.6 with s 200 of the Act. Section 200 provides, in substance, that the Act operates despite contrary contractual provisions and that provisions which conflict with, alter, exclude or limit the Act's operation have no effect to that extent (at [6]).
The adjudicator reasoned that the clauses could not be used to take away Tomkins' statutory progress-payment rights after those rights had arisen from the reference date and the payment claim. The adjudicator stated that cl 39.6 could not “take away” those rights because they had arisen on 28 August and “ripened” on service of the claim the following day (at [7], [21]).
York started Supreme Court proceedings seeking to set aside the adjudication decision for two alleged jurisdictional errors: a “construction error” concerning cls 39.4 and 39.6 and s 200, and a “consideration error” concerning a failure to consider submissions (at [4]). The primary judge found a consideration error which reduced the adjudicated amount to approximately $12.7 million, but declared that the decision was otherwise not affected by jurisdictional error and remained binding (at [4]). York appealed the latter declaration.
The Court of Appeal dismissed the appeal with costs. Mullins P and Brown JA agreed with Kelly J, who gave the reasons (at [1]–[2], [32]). The Court did not need to decide that every aspect of the adjudicator's contract construction was correct. Its central holding was that the alleged legal error did not establish that the adjudicator had exceeded the authority conferred by s 88.
The Court treated jurisdictional error as a question about the limits of statutory authority, rather than a synonym for legal error. It emphasised that the threshold was significant because the statutory scheme is designed for fast adjudication and summary enforcement, while preserving the parties' common-law rights for later determination. The High Court's discussion in Probuild was used to explain why ordinary errors of law are not enough to invalidate an adjudication decision (at [22]).
The relevant statutory task was in s 88. The adjudicator had to decide the amount of the progress payment, “if any”, the date it became payable and the applicable interest rate. Section 88 also specified what materials the adjudicator was to consider, including relevant parts of the Act, the contract, the payment claim and supporting submissions, the payment schedule and supporting submissions, and any inspection results (at [17]). The Court accepted that the adjudicator was properly seized of jurisdiction to determine the amount, if any, payable (at [17]).
The Court then applied the approach to jurisdictional error described in LPDT. The statutory conferral of authority must be construed to identify whether a condition was breached and, if so, whether that breach deprived the decision of legal force. The inquiry depends on the particular error and statutory context; there are no universal bright lines (at [25]). Here, York's submissions about the first ground identified alleged mistakes in construing cl 39 and s 200, but did not meaningfully identify an express or implied condition of the s 88 authority that had been breached (at [26]).
For the second ground, York argued that s 200 limited the adjudicator's function or power. The Court rejected that characterisation. It asked whether the authority conferred by s 88 was conditioned on the adjudicator not incorrectly applying s 200. The answer was no: the condition was not expressed in the Act, and the statutory scheme did not imply one (at [31]).
The structure of s 88 was relevant. Section 88(2)(a) refers to provisions of Chapter 3, while s 200 is in Chapter 7. The Court accepted that where the parties' submissions raised s 200, the adjudicator had to consider those submissions under s 88(2)(c) or (d). But the need to consider a provision because it appears in a party's submissions did not mean that the adjudicator's decision was legally governed by that provision in a way that conditioned the adjudicator's authority (at [18], [31]).
The Court also relied on the nature and reach of s 200. Its language refers broadly to “any contract, agreement or arrangement” and to the operation of “this Act”, whose scope extends beyond adjudication of progress-payment claims. The Court characterised s 200 as substantive law affecting the parties' ultimate rights, and not as a provision directed or relevant to the jurisdiction of an adjudicator (at [31]). Section 101(1)(a), which preserves contractual rights subject to s 200, was also part of the statutory context (at [31]).
Maxcon provided a close analogy. There, the High Court treated the relevant statutory provision as modifying the substantive law applicable to the contract, rather than limiting the adjudicator's authority. Kelly J applied that reasoning to s 200: the fact that a provision may be relevant to the adjudicator's consideration does not necessarily make correct application of it a condition of the adjudicator's authority (at [29]–[31]).
The consequence was that York's arguments, even framed as serious legal errors, did not show that the adjudicator had made only an ostensible determination outside the scope of s 88. Both appeal grounds failed, and Tomkins' notice of contention succeeded in supporting the primary judge's declaration (at [28], [31]).
The judgment did not purport to change the general law of jurisdictional error. It applied established principles to Queensland's statutory adjudication scheme and to s 200 in particular. The High Court authorities discussed by Kelly J establish the analytical method: identify the statutory authority, construe its limits, identify any alleged breach of an express or implied condition, and decide whether that breach made the purported decision legally ineffective (at [23]–[25]).
The judgment also situates the result within the policy and structure of security-of-payment adjudication. Probuild was cited for the legislative purpose of a fast, informal determination that can be summarily enforced without finally determining the parties' common-law rights. Allowing review for any error of law, regardless of whether authority was exceeded, would frustrate that scheme (at [22]). York therefore had to establish more than a potentially incorrect contract or statutory interpretation.
The specific clarification made by this decision is that s 200, despite being relevant to the adjudicator's reasoning where raised in submissions, is not a jurisdictional limit on the adjudicator's authority under s 88. The Court treated it as a general substantive provision affecting contractual rights. That distinction matters: a provision can be relevant to the adjudicator's decision-making without making correct application of it a condition of the statutory power to decide (at [18], [31]).
The judgment also discusses the relationship between the statutory entitlement to a progress payment and the amount ultimately determined. Sections 70 and 71 distinguish entitlement from calculation of amount; ss 75, 76 and 79 provide the claim, schedule and adjudication processes; s 88 assigns the adjudicator the task of fixing the amount, if any (at [11]). Southern Han and Parrwood were discussed in relation to when contractual suspension provisions may affect the existence of a reference date or the ability to make a claim (at [12]–[16]).
However, this appeal did not finally determine every substantive question about the operation of cls 39.4 and 39.6 or the ultimate contractual rights of York and Tomkins. The appeal concerned whether the adjudication decision was jurisdictionally invalid. The Court's holding should therefore be read in that procedural and statutory context, not as a general ruling that every take-out clause is effective or ineffective under s 200.
At [22], Kelly J said: “The requirement to demonstrate jurisdictional error is significant.” In plain English, a party challenging an adjudication decision cannot establish jurisdictional error simply by identifying a mistake. The asserted mistake must matter to the limits of the adjudicator's statutory authority.
At [23], the Court observed: “An adjudicator, properly seized of jurisdiction under the Act, will have been authorised to make some errors or mistakes.” This expresses the distinction between an error made while exercising a power and a decision made without, or beyond, that power. The judgment used the distinction to explain why a decision may remain legally effective even if the adjudicator's reasoning is disputed.
At [25], the Court quoted the High Court's explanation that identifying jurisdictional error requires construing the statutory conferral of authority and assessing the particular error in its statutory setting. The plain-English point is that there is no single checklist that resolves every case. The relevant statute and the nature of the alleged error must be considered together.
At [26], Kelly J found that York's first-ground submissions identified alleged construction errors but did not meaningfully identify a condition of the adjudicator's authority that had been breached. This was important because York's argument concentrated on what the adjudicator got wrong, rather than showing why that error placed the decision outside the authority conferred by s 88.
At [31], Kelly J stated that the authority under s 88 was not expressly conditioned on correct application of s 200, and that there was nothing in the Act to imply such a condition. This is the central passage for understanding the result. Section 200 might have been relevant to the merits of the parties' contractual dispute, but the Court did not treat it as a statutory boundary on the adjudicator's power.
Also at [31], the Court described s 200 as “a general provision embodying the substantive law affecting ultimate rights”. In plain English, it governs how the Act interacts with contractual provisions, but it does not define the adjudicator's jurisdiction merely because a party relies on it. The distinction is between the legal rules relevant to the parties' ultimate rights and the statutory rules that define the adjudicator's authority.
The decision is most directly relevant where an adjudicator has been validly appointed and has addressed a payment claim, but a party later argues that an error of statutory or contractual interpretation invalidated the determination. The key question is not only whether the adjudicator's interpretation was wrong. It is whether the Act makes correct interpretation of the relevant provision an express or implied condition of the adjudicator's authority.
The case is particularly pertinent where a party invokes s 200 of the Queensland Act in submissions about a contractual provision. The judgment indicates that s 200's presence in the submissions does not itself make it a jurisdictional limit. The adjudicator may need to consider the submissions under s 88(2)(c) or (d), but that is different from saying that the adjudicator's authority is conditioned on correctly applying s 200 (at [18], [31]).
It may also be relevant to disputes involving contractual suspension or take-out clauses, especially where the argument concerns whether those clauses affect statutory progress-payment rights. The judgment recounts Southern Han and Parrwood, including their treatment of the timing of a take-out notice and a reference date (at [12]–[16]). But York's claim was made before York issued its cl 39.4 notice, and the Court's central decision was about jurisdictional error, not a final determination of all possible applications of those clauses.
The precedent is less directly applicable where the alleged defect concerns a different statutory command, a failure to decide the amount required by s 88, or an error that may breach a clearly expressed condition of authority. The judgment does not establish that all errors by an adjudicator are authorised. It requires close attention to the particular statutory provision, the role it plays in the scheme, and the way the alleged error affected the decision (at [24]–[25], [28]).
The judgment is dated 9 December 2025, and the supplied judgment contains no decisions of courts after that date. Its treatment by later courts therefore cannot be assessed from this source.
The judgment itself explains how it used earlier authorities. It cited Southern Han for the distinction between a statutory entitlement and the later ascertainment of the amount, and for the effect of a take-out notice on contractual payment rights in the circumstances considered there (at [12]–[14]). It discussed Parrwood's treatment of the requirement that an adjudicator determine the amount, if any, and the distinct timing of the notice and payment claim in that case (at [15]–[16]).
It relied on Probuild for the purpose and character of the adjudication scheme, and on Hossain, Ceerose and LPDT for the framework distinguishing jurisdictional from non-jurisdictional error (at [22]–[25]). It applied Maxcon's reasoning by analogy to s 200, concluding that the provision is substantive law and not a condition on adjudicator authority (at [29]–[31]). These are the relationships expressed in this judgment; they should not be taken as evidence of how any later court has treated York.
The judgment leaves open the substantive merits of any dispute about the final contractual accounting under cls 39.4 and 39.6. It does not decide, for all possible circumstances, whether a particular exercise of a take-out clause affects a contractor's entitlement, the amount of a progress payment, or the operation of s 200. The Court's conclusion was that the alleged interpretive error did not establish jurisdictional error on the arguments advanced.
The decision also leaves open how a different statutory provision might affect jurisdiction. Its reasoning turns on the text and scheme of this Act, including the structure of s 88, the placement and breadth of s 200, and the substantive character attributed to s 200. A provision expressly made a condition of authority, or one that the statutory scheme necessarily implies as such, could require a different analysis. The judgment does not identify in advance which other provisions would meet that test.
A related question is how the jurisdictional analysis applies where an adjudicator fails to perform the core task required by s 88, rather than allegedly performing it on an incorrect view of substantive law. The judgment describes the statutory obligation to determine the amount, if any, and discusses Parrwood, but the appeal was not decided on a finding that the adjudicator had failed to determine that amount (at [15], [17], [26]–[31]).
Finally, the judgment does not resolve every possible consequence of a consideration error. The primary judge had already found such an error and adjusted the amount to approximately $12.7 million; the appeal concerned York's separate construction-error challenge and the declaration that the decision was otherwise binding (at [4]). The Court of Appeal dismissed that appeal with costs (at [32]).
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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 251
PARTIES: YORK PROPERTY HOLDINGS PTY LTD AS TRUSTEE FOR YORK PROPERTY TRUST / ABN 94 831 587 168 / (appellant) / v / TOMKINS COMMERCIAL & INDUSTRIAL BUILDERS PTY LTD / ABN 98 061 732 778 / (first respondent) / CHRIS LENZ (ADJUDICATOR NO. J622914) / (second respondent) / HWL EBSWORTH LAWYERS / ABN 37 246 549 189 / (third respondent)
FILE NO/S: Appeal No 1112 of 2025 / SC No 630 of 2025
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane – [2025] QSC 44 (Treston J)
DELIVERED ON: 9 December 2025
DELIVERED AT: Brisbane
HEARING DATE: 21 May 2025
JUDGES: Mullins P and Brown JA and Kelly J
ORDER: The appeal is dismissed with costs.
CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the appellant, as the principal, and the first respondent, as the builder, made a written contract for the construction of an apartment building – where the first respondent served on the appellant a payment claim seeking a payment of approximately $43 million – where the appellant served a payment schedule in respect of the payment claim which certified a negative amount as owing – where the first respondent applied for an adjudication of the payment claim – where the adjudicator made a decision which required the appellant to pay the first respondent approximately $16.8 million – where the appellant started a proceeding in this court seeking to set aside the adjudication decision on the basis that it was affected by two jurisdictional errors – where the first, styled as “the construction error”, concerned the construction of cls 39.4 and 39.6 of the general conditions of the contract and the effect on those clauses of s 200 of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) – where the second, styled as “the consideration error”, involved a failure to consider submissions – where the primary judge declared that the adjudication decision was affected by the consideration error which had the effect of reducing the adjudicated amount to approximately $12.7 million and a further declaration that the adjudication decision was otherwise not affected by jurisdictional error and remained binding on the parties – where the appellant contends that the adjudication decision was affected by jurisdictional error, being the construction error, and is void – where the requirement to demonstrate jurisdictional error is significant – where an adjudicator, properly seized of jurisdiction under the Act, will have been authorised to make some errors or mistakes – whether the adjudication decision was affected by jurisdictional error / Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 70, s 71, s 72, s 75, s 76, s 79, s 88, s 200 / Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225; [2023] NSWCA 215, cited / Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416; [1947] NSWStRp 24, cited / Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34, cited / John Holland Pty Ltd v Coastal Dredging & Construction Pty Ltd [2012] 2 Qd R 435; [2012] QCA 150, cited / LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, cited / Maxcon Constructions Pty Ltd v Vadasz (2018) 264 CLR 46; [2018] HCA 5, cited / Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWCA 172, cited / Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4, cited / Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52, cited
COUNSEL: G D Beacham KC, with T W Ambrose, for the appellant / D S Piggott KC, with J E Menzies, for the first respondent
SOLICITORS: Holding Redlich for the appellant / Thomson Geer for the first respondent
MULLINS P: I agree with Kelly J.
BROWN JA: I agree with Kelly J.
An appeal involving an adjudication decision
KELLY J: The appellant (“York”), as the principal, and the first respondent (“Tomkins”), as the builder, made a written contract for the construction of an apartment building (“the contract”). The relevant reference date under the contract was 28 August 2024. On 29 August 2024, Tomkins served on York a payment claim under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (“the Act”) seeking a payment of approximately $43 million. On 12 September 2024, York served a payment schedule in respect of the payment claim which certified a negative amount as owing and also served a notice under cl 39.4 of the general conditions of the contract which purported to take out of Tomkins’ hands, the work remaining to be completed. On 25 October 2024, Tomkins applied for an adjudication of the payment claim. The second respondent (“the adjudicator”) was appointed as the adjudicator of the payment claim. On 11 February 2025, the adjudicator made an adjudication decision in respect of the payment claim, which he corrected on 14 February 2025. The corrected adjudication decision required York to pay Tomkins approximately $16.8 million.
On 14 February 2025, York started a proceeding in this court seeking to set aside the adjudication decision on the basis that it was affected by two jurisdictional errors. The first, styled as “the construction error”, concerned the construction of cls 39.4 and 39.6 of the general conditions of the contract and the effect on those clauses of s 200 of the Act. The second, styled as “the consideration error”, involved a failure to consider submissions. On 18 February 2025, interlocutory injunctions were granted restraining Tomkins from enforcing the adjudication decision and the third respondent, an escrow agent, from making any disbursement to Tomkins from an escrow account. On 18 March 2025, the primary judge declared that the adjudication decision was affected by the consideration error which had the effect of reducing the adjudicated amount to approximately $12.7 million. The judge made a further declaration that the adjudication decision was otherwise not affected by jurisdictional error and remained binding on the parties. That further declaration is the subject of this appeal. On this appeal, York contends that the adjudication decision was affected by jurisdictional error, being the construction error, and is void.
The grounds of appeal
The contract included general conditions of contract in the form of AS 400-1997. Clause 39.4 provided that if Tomkins failed to show reasonable cause by the date and time stated in a notice given to it by York under cl 39.2, York might serve a notice to “take out of the Contractor’s hands the whole or part of the work remaining to be completed and suspend payment until it becomes due and payable pursuant to … clause 39.6”. Clause 39.6 provided that “When work taken out of the Contractor’s hands has been completed, the Superintendent will assess the cost thereby incurred and will certify as moneys due and payable accordingly the difference between that cost … and the amount which would otherwise have been paid to the Contractor if the work had been completed by the Contractor”.
Section 200 of the Act provided:
“Contracting out prohibited
The provisions of this Act have effect despite any provision to the contrary in any contract, agreement or arrangement.
A provision of a contract, agreement or arrangement is of no effect to the extent to which it—
is contrary to this Act; or
purports to exclude, limit or change the operation of this Act; or
has the effect of excluding, limiting or changing the operation of this Act; or
may reasonably be construed as an attempt to deter a person from taking action under this Act.”
“Even if [Tomkins] was in breach of the contract and [York] was lawfully entitled to rely upon clause 39.4, about which I make no finding, the key issue is that clause 39.6 cannot engage to take away [Tomkins’] s 70 rights to payment because [Tomkins’] statutory rights were created from the reference date of 28 August 2024 and ripened by service of the Payment Claim on 29 August 2024”.
The first ground of appeal contends that these findings, which were accepted as correct by the judge, were in error. York contends that the “relevant effect” of cls 39.4 and 39.6 was not to remove the right to make a payment claim but rather to require the amount of any progress payment to be assessed on the basis that Tomkins’ right to payment under the contract was wholly suspended. On that construction, Tomkins was not entitled to any payment under the contract at the time that the amount of the progress payment fell to be assessed, such that the amount of the progress payment was required to be “nil”.
The second ground of appeal contends that the judge erred by finding that, even if the adjudicator incorrectly construed cls 39.4 and 39.6, the adjudication decision was not affected by jurisdictional error because it was arrived at by a process which fell within the valid exercise of the adjudicator’s jurisdiction. York contends that the construction error meant that the adjudicator misapprehended the nature and limits of his jurisdiction and incorrectly concluded that s 200 “limited him by prohibiting him from giving effect to clauses 39.4 and 39.6”.
By a notice of contention, Tomkins seeks to affirm the declaration the subject of this appeal, on the ground that even if the adjudicator erred in his reasoning as to the interaction between s 200 and cl 39, the error did not go to jurisdiction because s 200 was a provision embodying the substantive law affecting the ultimate rights of the parties and was not a provision directed, or relevant, to the adjudicator’s jurisdiction.
The statutory right to a progress payment
Chapter 3 Part 2 of the Act dealt with the right to progress payments. From each reference date under the contract, being a construction contract, Tomkins was entitled to a progress payment if it had carried out construction work or supplied related goods and services under the contract (s 70). The amount of the progress payment to which Tomkins was entitled fell to be calculated as follows. If the contract provided for the matter, the amount calculated in accordance with the contract (s 71(a)). If the contract did not provide for the matter, the amount calculated on the basis of the value of the construction work carried out under the contract, or the related goods and services supplied by Tomkins in accordance with the contract (s 71(b)). The Act provided for how construction work and related goods and services carried out or supplied under a construction contract were to be valued (s 72). Chapter 3 Part 3 of the Act dealt with the giving of, and responses to, payment claims. A claimant who was or claimed to be entitled to a progress payment might give a payment claim to the person who under the relevant construction contract was or might be liable to make the payment (s 75). A respondent had to respond to the payment claim by giving the claimant a payment schedule (s 76). A claimant might apply for adjudication of a payment claim if the amount stated in the payment schedule, given in response to the payment claim, was less than the amount stated in the payment claim (s 79(b)). The adjudication of disputed claims was dealt with by Chapter 3 Part 4 of the Act. Pursuant to s 88, the adjudicator was to decide the amount of the progress payment, if any, to be paid by the respondent to the claimant, the date on which any amount was payable and the rate of interest payable on any amount.
In a particular case, whether a right to a progress payment exists may be affected by the timing of a principal’s exercise of a contractual right to take the work out of the hands of the contractor. In Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd,1 a payment claim was given by a contractor after the principal had given notice under an equivalent provision to cl 39.4. The appeal to the High Court raised the question of whether the existence of a reference date under a construction contract was a precondition to making a valid payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the NSW Act”). The High Court answered that question in the affirmative and found that, on the facts, no reference date existed. The question involved an issue of statutory construction. On that question, the Court reasoned as follows:2
“… Pt 2 confers a statutory entitlement to a progress payment. … Pt 3 builds on Pt 2 by establishing a procedure for recovery of a progress payment to which an entitlement exists. The two parts, however, are not hermetically sealed.
Within Pt 2 an important distinction is drawn between a progress payment to which a person is entitled and the amount of the progress payment to which that person is entitled. Cast in the present tense, s 8(1) makes clear that a person who meets the description of a person who has undertaken to carry out construction work or supply related goods and services under a construction contract is immediately by force of that provision ‘entitled to a progress payment’ on and from each reference date under the construction contract. Cast in the future tense, in contrast, s 9 makes clear that the amount of a progress payment to which the person is so entitled is not fixed by force of that section but ‘is to be’ ascertained in the manner prescribed by that section, and quantifies the amount of the progress payment to which a person is entitled by force of s 8(1). Section 9 in that way anticipates the procedure for recovery of a progress payment set out in Pt 3. Under that procedure, in the event of a dispute between a claimant and a respondent, the ascertainment of the amount, if any, of the progress payment to be recovered is committed to the jurisdiction of an adjudicator to determine under s 22.
That distinction drawn in Pt 2, between a present entitlement to a progress payment and the future ascertainment of the amount of the progress payment to which that present entitlement relates, explains the two-part description in s 13(1) of a person who is able to make a payment claim so as to trigger the procedure for recovery set out in Pt 3. The first part of the description — ‘[a] person referred to in section 8(1)’ — refers to a person whom s 8(1) makes ‘entitled to a progress payment’. The second part of the description — ‘who is or who claims to be entitled to a progress payment’ — neither contradicts nor qualifies the first part of the description. The second part of the description rather recognises, consistently with s 9, that the amount of the progress payment to which that person is entitled might ultimately be ascertained, according to the procedure set out in Pt 3, to be less than the amount that the person claims to be due and might even be ascertained according to that procedure to be nothing.
… 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).”
The relevant provisions of the NSW Act were substantively similar to the relevant provisions of the Act.3
In Southern Han, the particular construction contract had provided for the contractor to make a progress claim on the eighth day of each calendar month for work under the contract done to the seventh day of that month. On 27 October 2014, the principal exercised its right under cl 39.4 to take out of the contractor’s hands the whole of the work remaining to be completed under the contract. On 4 December 2014, the contractor purported to serve a payment claim in respect of a reference date, identified as 8 November 2014, being a date fixed under the contract. By reference to those facts, no reference date existed and the court relevantly observed as follows:4
“On the hypothesis that Southern Han exercised its right under cl 39.4 to take out of Lewence’s hands the whole of the work remaining to be completed under the Contract on 27 October 2014, cl 39.4 operated expressly to suspend payment until completion of the process for which cl 39.6 provided. The commercial purpose of the suspension in the event of such a breach, as the primary judge explained, was to provide a form of security to Southern Han in the event that the costs of completion of the work taken out of Lewence’s hands were greater than the amount Southern Han would have had to pay if Lewence had completed the work itself. That commercial purpose would be undermined were cl 39.4 to be interpreted as suspending payment only for the work taken out of Lewence’s hands.
True it is that cl 39.4 would have permitted Southern Han to take only some of the work out of Lewence’s hands, in which case to interpret that clause as suspending payment for the work other than that taken out of Lewence’s hands would mean that Lewence would have been obliged to continue with other work for which it would not be paid until completion of the cl 39.6 process. But, given that Southern Han’s right to take work out of Lewence’s hands was capable of being exercised, and that the suspension was correspondingly capable of occurring only following what cl 39.2 referred to as a substantial breach of the Contract, such a result is hardly surprising.
The suspension of payment was a suspension of the totality of the rights conferred and obligations imposed in relation to payment by cl 37. The rights so suspended included Lewence’s right to make a progress claim under cl 37 for work carried out up to the time of the work being taken out of its hands.”
“The adjudicator took that view because he was satisfied that cl 39 of the contract had been validly exercised, did not contravene the provisions of s 34 and had the effect that [the contractor] was not entitled under the contract to the payment for any monies claimed in the payment claim. That view did not entitle him to disregard the command in s 22(1)(a) to determine the amount of the progress payment (if any).”
“Southern Han is an authoritative decision on materially identical contractual provisions. It is settled law that after the valid service of a take out notice, the contractor’s rights are thereafter suspended, including the right to claim progress payments under cl 37, which in turn has the result that the statutory entitlement under s 8 will thereafter no longer arise. …
Here, on and from 25 August 2019 — before Parrwood exercised its rights under cl 37 — [the contractor] enjoyed an entitlement under s 8 of the Act. Under s 13 of the Act, [the contractor] was entitled to make a payment claim based on the reference date of 25 August any time in the next 12 months. Further, s 34 had the effect that any provision in the contract which purported to exclude, modify or restrict the operation of the Act was void. It cannot be the case that a statutory entitlement to make a progress claim, which [the contractor] undoubtedly enjoyed on, say, 1 September 2019, ceased or was modified or extinguished after 3 September 2019 by dint of Parrwood exercising some right under the contract. That would invert the relationship between statute and contract.”
In the present case, the payment claim was given before York gave notice under cl 39.4. There is no issue that, within the meaning of s 70, Tomkins was entitled to a progress payment. The payment claim was for the amount of approximately $43 million. York responded to the payment claim with a payment schedule certifying as payable a negative amount of $957,401.70. As the amount stated in the payment schedule given in response to the payment claim was less than the amount stated in the payment claim, Tomkins was entitled to apply for adjudication of the payment claim.
The adjudicator’s jurisdiction
“Adjudicator’s decision
An adjudicator is to decide—
the amount of the progress payment, if any, to be paid by the respondent to the claimant (the adjudicated amount); and
the date on which any amount became or becomes payable; and
the rate of interest payable on any amount.
In deciding an adjudication application, the adjudicator is to consider the following matters only—
the provisions of this chapter and, to the extent they are relevant, the provisions of the Queensland Building and Construction Commission Act 1991, part 4A;
the provisions of the relevant construction contract;
the payment claim to which the application relates, together with all submissions, including relevant documents, that have been properly made by the claimant in support of the claim;
the payment schedule, if any, to which the application relates, together with all submissions, including relevant documents, that have been properly made by the respondent in support of the schedule;
the results of any inspection carried out by the adjudicator of any matter to which the claim relates.
However, the adjudicator must not consider any of the following—
an adjudication response, to which the adjudication application relates, that was not given to the adjudicator within the time required under section 83;
a reason included in an adjudication response to the adjudication application, if the reason is prohibited from being included in the response under section 82.
Also, the adjudicator may disregard an adjudication application or adjudication response to the extent that the submissions or accompanying documents contravene any limitations relating to submissions or accompanying documents prescribed by regulation.
The adjudicator’s decision must—
be in writing; and
include the reasons for the decision, unless the claimant and the respondent have both asked the adjudicator not to include the reasons in the decision.
The adjudicator must give the registrar—
a copy of the decision; and
notice of all fees and expenses paid, and to be paid, to the adjudicator for the decision.
Maximum penalty—40 penalty units.
The adjudicator must give the registrar the information mentioned in subsection (6) at the same time the adjudicator gives a copy of the decision to the claimant and the respondent.”
It may be observed that s 88(2) provided that in deciding an adjudication application, the adjudicator was to “consider the following matters only”. To the extent that s 88(2)(a) identified any provisions of the Act, those provisions were “the provisions of this chapter”, being Chapter 3. Section 200 appeared in a separate chapter of the Act, Chapter 7, which was headed “Miscellaneous”. It was accepted on this appeal that although s 200 was not identified as a provision which the adjudicator was required to consider under s 88(2)(a), it was a provision referred to in the parties’ submissions, which the adjudicator was required to consider under ss 88(2)(c) and (d).
The adjudicator’s decision
The adjudicator received submissions directed to Southern Han and Parrwood. The adjudicator referred to those paragraphs in Parrwood14 which cited Southern Han as providing “settled law that after the valid service of a take out notice, the contractor’s rights are thereafter suspended, including the right to claim progress payments under cl 37, which in turn has the result that the statutory entitlement under s 8 will thereafter no longer arise”. The adjudicator noted that Parrwood was distinguishable from Southern Han because the reference date in the former case had arisen before the take out notice.
The adjudicator’s decision referenced Tomkins’ submission that cls 39.4 and 39.6 were void because they excluded, limited or changed the effect of s 70 of the Act.15 The decision also referenced York’s submission that cl 39.6 was not void pursuant to s 200 “because the take-out procedure provides for how the construction work is to be valued, which is something that falls squarely within the ambit of the Adjudicator’s duty”.
The adjudicator relevantly reasoned as follows:16
“I find these clauses have the effect of taking away the statutory right to payment. Any attempt to invoke clause 39.6, as submitted by the Respondent, to take away that entitlement, falls foul of s 200 of [the Act] because it is an attempt to contract out of [the Act]. …
I therefore am unable to accept the respondent’s submission … that clause 39.6 was not void because the take-out procedure provides for how the construction work is to be valued in accordance with the contract.
…
Even if the claimant was in breach of the contract and the respondent was lawfully entitled to rely upon clause 39.4, about which I make no finding, the key issue is that clause 39.6 cannot engage to take away the claimant’s s 70 rights to payment because the claimant’s statutory rights were created from the reference date of 28 August 2024 and ripened by service of the payment claim on 29 August 2024.
I find therefore against the respondent regarding the issue of the Claimant’s no entitlement to payment and will consider the merits of the claim after deciding on the other additional matter regarding issue estoppel.”
No jurisdictional error established
The requirement to demonstrate jurisdictional error is significant. In relation to legislation substantially identical to the Act, the High Court found a clear legislative intention to exclude the jurisdiction of a superior court to make orders in the nature of certiorari to quash an adjudicator’s determination for non-jurisdictional error of law on the face of the record.17 The Act may be regarded as legislation which creates an entitlement “determined informally, summarily and quickly, and then summarily enforced without prejudice to the common law rights of both parties which can be determined in the normal manner”.18 In the context of this kind of legislation, the High Court has observed that to permit potentially costly and time consuming judicial review proceedings to be brought on the basis of error of law on the face of the record, regardless of whether an adjudicator has exceeded the limits of their statutory functions and powers, would frustrate the operation and evident purpose of the statutory scheme.19
In Hossain v Minister for Immigration and Border Protection,20 the plurality21 observed that the distinction between jurisdictional errors and non-jurisdictional errors is ultimately “a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised”. In the context of jurisdictional error, it has been observed that “there are mistakes and mistakes”.22 Lord Reid once observed of a Magistrate, “If he has jurisdiction to go right he has jurisdiction to go wrong”.23 An adjudicator, properly seized of jurisdiction under the Act, will have been authorised to make some errors or mistakes.
In Ceerose Pty Ltd v A-Civil Aust Pty Ltd,24 Payne JA, with whom Ward ACJ and Basten AJA agreed, provided the following succinct description of jurisdictional error:
“Jurisdictional error has been described as ‘a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it’ … Put simply, it involves a decision-maker exceeding the authority to decide conferred on them, or failing to exercise that authority when required to do so.”
“A statute which contains an express or implied condition of a conferral of decision-making authority is not always to be interpreted as denying legal force and effect to every decision that might be made in breach of that condition. Only by construing the statute so as to understand the limits of the statutory conferral of decision‑making authority is it possible to determine, first, whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decision‑making authority) and, second, whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force).
Determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged in the statutory context within which the decision has been made. Given the broad range of decisions in which errors might be made, the large variety of statutory schemes in which those decisions might be made, and the range of circumstances which may attend the making of any particular decision, it is impossible to divine a rigid classification of the errors that constitute jurisdictional errors. There are no bright lines to be drawn – ‘[t]he nature of the error has to be worked out in each case concerning a specific decision under a particular statute’.”
York’s submissions in relation to the first ground of appeal may be outlined as follows. As a matter going to his jurisdiction, “the merits and effect of the take out notice” had to be considered by the adjudicator when determining the amount of the progress payment. The adjudicator had impermissibly “focussed on the notion that a right to make a payment claim could not be taken away” when “the point” was instead that the notice had suspended the totality of the rights to payment under the contract including the final right to payment and therefore the amount of any progress payment. The judge was said to have erred by accepting the adjudicator’s construction as correct. These submissions are noteworthy because they did not in any meaningful way attempt to identify an express or implied condition of the Act’s conferral of decision-making authority on the adjudicator. It can be accepted that, in ascertaining the intended effect of cl 39.6 and whether that intended effect contravened s 200, the adjudicator was necessarily engaged in the task of construing cl 39.6.27 York’s submissions on the first ground were confined to merely identifying errors in the adjudicator’s approach to construing cl 39. They provided no basis for a conclusion that any errors in construction were to be regarded as errors which were not authorised by the statutory conferral of decision making authority. The first ground of appeal fails.
As to the second ground, York submitted in terms that “s 200 is a limit on the adjudicator’s function or power, where it applies”. That submission was the essential premise upon which the second ground of appeal was based. York’s further submissions on the second ground may be outlined as follows. The jurisdictional error involved the adjudicator determining “that there was a limit on his function or his power, through s 200, when on a proper analysis there was no such limit”. The adjudicator’s decision in reliance on s 200 was “wrong”. A contractual clause which “restricts or reduces the amount payable under the … contract, and therefore has a consequential effect on the amount of a progress payment, [was] not contracting out under s 200”. The adjudicator “misapprehended the limits of his functions or powers” and, in the result, “ignored the effect of the take out notice under cl 39”. In its oral submissions, York went as far as to submit that the adjudicator had not “considered cl 39”. That submission was explained in terms that whilst “an element of construction [was] involved”, the adjudicator had considered the clause “for the purpose of working out whether there was a limit on him”. Ultimately, York accepted that the adjudicator had considered cl 39 but sought to style that consideration as being “not for the purpose of working out how much the progress payment might or might not be [but] for the purpose of working out whether s 200, effectively, tossed the provision out”. The judge was said to have erred by concluding that even if the adjudicator’s approach to the construction of cl 39 was wrong, no jurisdictional error was involved.
“The question of whether the error of law found by the Full Court was a jurisdictional error therefore becomes a question of whether the authority conferred by s 22(1) is conditioned by a requirement that the adjudicator not incorrectly apply s 12 of the [SA Act]. I answer that question in the negative because the authority conferred by s 22(1) is not expressly so conditioned and because I am unable to see anything in the scheme of the [SA Act] to support a conclusion that the authority is impliedly so conditioned.
In that respect, I cannot agree with the dissenting view of Hinton J in the Full Court that s 12 of the [SA Act] ‘defines a limit’ on the progress payment the statutory entitlement to which is created by s 8 and the resolution of a claim to the recovery of which Pt 3, including s 22(1), is directed. Notwithstanding the co-location of s 12 with s 8 within Pt 2, s 12 is neither in form nor in substance a limitation on the statutory entitlement created by s 8. Rather, as Blue J (with whom Lovell J agreed) observed, s 12 is a provision which modifies the substantive law applicable to a construction contract.
The operation, or potential operation, of s 12 is within the matters which s 22(2) requires the adjudicator ‘to consider’ in making the determination under s 22(1). The adjudicator's determination is not expressly or impliedly governed by the operation of s 12. Conversely, as s 32(1)(b) spells out, the adjudicator's determination has no effect on any right that a party to a construction contract may have as a result of the operation of s 12.”
Proposed order
(2016) 260 CLR 340. ↩
Ibid at [58] to [61]. ↩
The comparative provision to s 8 of the NSW Act is s 70 of the Act; The comparative provision to s 9 of the NSW Act is s 71 of the Act; The comparative provision to s 13 of the NSW Act is s 75 of the Act; The comparative provision to s 22 of the NSW Act is s 88 of the Act. ↩
(2016) 260 CLR 340 at [76] to [78]. ↩
[2020] NSWCA 172. ↩
Ibid at [22]. ↩
Ibid at [30] to [31]. ↩
Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340 at 360 [59]. ↩
Sections 84 and 85. ↩
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at 9 [14]. ↩
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at 15 [36]. ↩
Ibid. ↩
Ibid at 17 [41].
York Property Holdings Pty Ltd
Tomkins Commercial & Industrial Builders Pty Ltd [2025] QCA 251
(2023) 112 NSWLR 225
(2024) 280 CLR 321
(1981) 151 CLR 170
(2018) 264 CLR 123
(2018) 264 CLR 46
(2018) 264 CLR 1
(2016) 260 CLR 340
The appeal was dismissed with costs. The primary judge's declaration that the adjudication decision was otherwise not affected by jurisdictional error and remained binding was not disturbed.
The issue raised by the second ground of appeal and the notice of contention may be framed in terms of whether the particular mistake of law that the adjudicator is said to have committed had the effect of causing the adjudicator, for some reason other than it simply having been a mistake of law, to exceed the authority conferred by s 88 with the consequence that what purported to be a determination within the scope of that authority was no more than an ostensible determination.28
In Maxcon Constructions Pty Ltd v Vadasz,29 the High Court considered the Building and Construction Industry Security of Payment Act 2009 (SA) (“the SA Act”). There was no material difference between the SA Act and the NSW Act. Under the SA Act, like the NSW Act, s 22 conferred authority on an adjudicator to make an adjudication decision. Section 12(1) of the SA Act provided that a “pay when paid provision” of a construction contract had no effect in relation to any payment for construction work carried out or undertaken to be carried out under the contract. Section 12(2) then relevantly defined various kinds of “pay when paid provisions”. The Full Court found that the adjudicator had committed a particular mistake of law involving the misinterpretation of a definition in the construction contract. The Full Court found that the misinterpretation had caused the adjudicator to mischaracterise a provision of the construction contract as a “pay when paid provision” within the meaning of s 12(2)(c) of the SA Act and, by reason of that mischaracterisation, wrongly to treat that provision as having no effect by operation of s 12(1) of the SA Act.
In a passage with which Edelman J agreed, Gageler J, as the Chief Justice then was, relevantly said:30
[2020] NSWCA 172 at [30]. ↩
RB at 202 [99]. ↩
RB at 205. ↩
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at 15 [35]. ↩
Ibid at 18 [44]. ↩
Ibid at 19 [48]. ↩
(2018) 264 CLR 123. ↩
Kiefel CJ, Gageler and Keane JJ. ↩
Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, cited in R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 268; Maxcon Constructions Pty Ltd v Vadasz (2018) 264 CLR 46 at 59 [35]. ↩
R v Governor of Brixton Prison; Ex parte Armah [1968] AC 192 at 234. ↩
(2023) 112 NSWLR 225 at 235–6. ↩
(2024) 280 CLR 321 at [4] and [5]. ↩
Ibid at [3]. ↩
John Holland Pty Ltd v Coastal Dredging & Construction Pty Ltd [2012] 2 Qd R 435 at 443 [20] and [21]. ↩
Maxcon Constructions Pty Ltd v Vadasz (2018) 264 CLR 46 at 59 [35]. ↩
(2018) 264 CLR 46. ↩
Ibid at 59 to 60 [37]–[39]. ↩