York Property Holdings Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd [2026] QCA 63

SUPREME COURT OF QUEENSLAND

CITATION: York Property Holdings Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd [2026] QCA 63

PARTIES: YORK PROPERTY HOLDINGS PTY LTD ATF YORK PROPERTY TRUST / ABN 94 831 587 168 / (appellant) / v / TOMKINS COMMERCIAL & INDUSTRIAL BUILDERS PTY LTD / ABN 98 061 732 778 / (first respondent) / RICHARD ATKIN (ADJUDICATOR NO. J1182971) / (second respondent) / THE ADJUDICATION REGISTRAR (QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION) / (third respondent) / 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: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane – [2025] QSC 261 (Crowley J)

DELIVERED ON: 14 April 2026

DELIVERED AT: Brisbane

HEARING DATE: 12 February 2026

JUDGES: Bowskill CJ, Brown JA, Bradley JA

ORDER: Appeal dismissed, with costs.

CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS, REMUNERATION, STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – where the appellant engaged the first respondent as head contractor for the construction of an apartment building – where the first respondent made a payment claim, including a claim for payment for construction of the building’s façade – where a dispute arose in relation to design responsibility for, and quality of, the building’s façade – where the dispute was referred to an adjudicator under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) – where the adjudicator accepted the appellant’s argument as to design responsibility and found that, in the absence of a form 15 certifying the façade had been constructed in accordance with the design, the entire façade may require removal and replacement – where the adjudicator valued the estimated cost of rectifying the façade at $4,764,178, which was the value of the façade construction work undertaken to date, on the appellant’s assessment – where the primary judge found this part of the adjudicator’s decision void for jurisdictional error, because the adjudicator failed to make a finding whether the work was in fact defective and purported to estimate the cost of rectifying the potentially defective work in circumstances where there was no evidence before him of the estimated cost, only the asserted value of the “defect” relied upon by the appellant, namely, the value of the work carried out to date – where the primary judge also found that the adjudicator’s decision was illogical and incoherent, because in another part of the decision the adjudicator had rejected the appellant’s assessment of the percentage of work completed to date – whether the primary judge’s decision was correct / Building Industry Fairness (Security of Payment) Act 2017 (Qld) / Judicial Review Act 1991 (Qld) / Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd (2020) 4 QR 410; [2020] QSC 133, cited / Annie Street JV Pty Ltd v MCC Pty Ltd [2016] QSC 268, cited / City of Ryde v AMFM Constructions Pty Ltd [2011] NSWSC 1469, cited / Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34, cited / LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, considered / Tomkins Commercial & Industrial Builders Pty Ltd v York Property Holdings Pty Ltd [2025] QSC 261, considered

COUNSEL: M D Ambrose KC, with T W Ambrose, for the appellant / D S Piggott KC, with J E Menzies, for the respondents

SOLICITORS: Holding Redlich for the appellant / Thomson Geer for the respondents

1. BOWSKILL CJ: In August 2021, the appellant (York) engaged the respondent (Tomkins) as the head contractor for the construction of an apartment building on the Gold Coast. Disputes arose in relation to two progress payments, which were referred to an adjudicator under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act). The disputes included disagreement about the design responsibility for, and quality of, the building’s façade.¹ Tomkins challenged a number of parts of the adjudicator’s two decisions on the basis of jurisdictional error. The learned primary judge upheld one of Tomkins’ challenges, finding that a part of the adjudicator’s decision, which allowed a deduction for the “estimated cost of rectifying the façade”, was void for jurisdictional error. By this appeal, York contends the primary judge erred in reaching this conclusion.

2. The primary judge’s decision was correct. The error made by the adjudicator was failing to perform the task required of him by s 88(1), as informed by s 72(1), of the BIF Act of determining, first, whether the contested work “is defective” and second, if so, the “estimated cost of rectifying the defect”. It is an implied condition of the statutory conferral of decision-making authority on an adjudicator that the adjudicator perform the task required by s 88(1). The failure to comply with that condition results in a decision which lacks the characteristics necessary for it to be given legal force: a jurisdictional error.² I would dismiss the appeal, with costs.

The legislative context

3. Section 70 of the BIF Act provides for progress payments to be made.

4. Under s 71, the amount of a progress payment, where (as in this case) the contract does not provide for the matter, is “the amount calculated on the basis of the value of construction work carried out … by the person in accordance with the contract”³ (s 71(b)).

5. Relevantly, s 72(1) of the BIF Act provides:

“Construction work carried out under a construction contract is to be valued –

if the contract provides for the matter – in accordance with the contract; or

if the contract does not provide for the matter – having regard to –

the contract price for the work; and

any other rates or prices stated in the contract; and

any variation agreed to by the parties to the contract by which the contract price, or any other rate or price stated in the contract, is to be adjusted by a specific amount; and

if any of the work is defective, the estimated cost of rectifying the defect.”⁴

6. The task of the adjudicator is set out in s 88 of the BIF Act, which relevantly provides:

“88 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 [which includes s 72] 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.”⁵

The adjudicator’s decision

7. Tomkins made a payment claim for just over $22.4 million, for work carried out to the end of May 2024.⁶ York responded with a payment schedule, disputing a number of items and deducting amounts for work said to be defective or not in accordance with the contract, resulting in a negative figure of just over $1.2 million.⁷ The adjudicator decided that the amount payable for this payment claim was $920,892.⁸

8. One element of the works the subject of the payment claim was the façade of the building (comprising the curtain wall, aluminium door and windows). Tomkins claimed an amount of $7,510,366⁹ for this work, on the basis it was 46% complete. Taking account of an amount of $4,764,178 previously claimed, the claimed amount was $2,746,188.¹⁰

9. In response to the claim, York contended the façade works were only 29% complete, and that the value of work completed to that point in time was the amount of $4,764,178 which had already been claimed. Another aspect of the dispute concerned design responsibility. York contended that Tomkins was required, under the contract, to provide a “form 15” certification of design for the building’s “façade system”.¹¹ Tomkins disputed that. In the absence of a form 15, York said it was not able to determine whether the façade had been constructed in accordance with the contract and was “concerned that the entirety of the façade may be defective”. It was on this basis that York, in response to the payment claim, deducted “the value of works undertaken to date” (on York’s assessment, the $4,764,178 already paid) because “the entirety of the façade installed by [Tomkins] [was] rejected”.¹²

10. The adjudicator resolved the first part of this dispute in favour of Tomkins, finding that York had not substantiated its assessment of façade works completed (as only 29%) and therefore accepting Tomkins’ assessment of the works as being 46% complete. Taking the amount already paid ($4,764,178) from the value of the work done to that point ($6,802,706, as reduced in the adjudication application), the adjudicator arrived at an adjudicated amount of $2,038,528 for the façade works.

“106.… I consider that the claimant is required to provide a form 15 for the façade works.

The respondent is concerned that the entirety of the façade may be defective in particular weatherproofing and structural integrity. These issues are supported by the reports and photos provided in the adjudication response. The respondent has requested the claimant to provide a form 15 which would address these issues.

In the absence of a form 15, which as discussed above I find the claimant is required to provide, the respondent’s concerns over the façade are not addressed by the claimant. Accordingly, as contended by the respondent, the entire façade may require removal and replacement.

The respondent has estimated the costs of rectifying the defects at the previously assessed value of the work completed (prior to the payment claim) of $4,764,178.27 excl. GST. The claimant has not provided any alternate estimate of the cost of rectifying the defects in the façade.

Accordingly, I value the estimated cost of rectifying the facade at $4,764,178.27 excl. GST pursuant to section 72(1)(b)(iv) of the Act.”¹⁴

12. For these reasons, the adjudicator allowed a deduction for “work not in accordance with contract” for the façade of $4,764,178.

The decision at first instance

13. The primary judge’s reasons for finding jurisdictional error in respect of this aspect of the adjudicator’s decision were as follows:

“[160]The first concern I have with the Adjudicator’s approach is that he did not actually make a finding that any of the work was defective. Rather, he accepted that the entire façade ‘may’ require removal and replacement. He reached that conclusion on the basis of his earlier findings that Tomkins was required to provide a Form 15 and that in the absence of doing so the ‘concerns’ raised by York about the work performed had not been addressed. Although it seems that the Adjudicator accepted York’s argument that the work was not in accordance with the contract, that was not a finding that the work was defective, such that it had to be removed and replaced. At its highest, it was a conditional finding that those things might need to be done.

[161]The second concern I have is that irrespective of the absence of an actual finding that the work was defective, the Adjudicator purported to value the work under s 72(1)(b) of the BIF Act without there being any evidence before him of the estimated costs of rectifying the defect. The Adjudicator assessed the estimated costs as $4,764,178.27, which was simply the amount that had previously been paid by York to Tomkins for the work done before Payment Claim No. 32 and which York claimed it was entitled to withhold under the contract. Irrespective of whether that was so, the amount identified was not an estimate of the costs of rectifying the work. Unlike other instances in the First and Second Adjudication Decisions, where the Adjudicator had assessed the value of defective work according to the evidence before him, on this occasion there was no such evidence and thus no foundation for his decision.

[162]In the result, I am satisfied this aspect of the Second Adjudication Decision was at least affected by jurisdictional error of the kind complained of under Jurisdictional Error 7. I also accept, as Tomkins contends in respect of Jurisdictional Errors 4 and 5, that it was illogical and incoherent for the Adjudicator to decide that the value of the work to date was $6,802,706.65, yet then value the supposedly defective work at $4,764,178.27. If in fact the work to date was defective because it may need to be replaced, then according to the Adjudicator’s reasoning the value of those works should surely have been the full amount of $6,802,706.65. Whilst that finding alone might not demonstrate jurisdictional error, the matter is put beyond doubt in my view by the Adjudicator’s approach of selecting the figure of $4,764,178.27 as an estimate of the costs of rectifying defective work when valuing the work under s 72(1) of the BIF Act. To my mind, the Adjudicator’s approach shows that he did not consider the matters he was required to consider under s 88(2) of the BIF Act, in particular the payment schedule to which the application relates, together with all submissions, including relevant documents, that had been properly made by the respondent in support of the schedule under s 88(2)(d). Had he done so, it would have been evident to him that York’s submissions did not actually suggest that he should value the work in the manner he did and, moreover, that there was no evidence of an estimate of costs of rectifying the supposed defective work.”¹⁵

14. The reference to jurisdictional errors 4, 5 and 7 in the Reasons are references to the errors which Tomkins submitted affected this part of the adjudicator’s decision – that the decision was illogical or perverse (error 4) and incoherent (error 5) and that the adjudicator had failed to consider Tomkins’ submissions and the provisions of the contract (error 7).¹⁶ In relation to another part of the decision, Tomkins argued that the adjudicator fell into jurisdictional error by failing to perform the task of valuing the work or the estimated costs of rectification (error 3).¹⁷ As explained below, the latter is a more appropriate description of the particular error made by the adjudicator, in so far as the façade deduction is concerned. The primary judge captures this, in substance, in [160] and [161] of the Reasons. The fact that the particular nature of the jurisdictional error made by the adjudicator may be different from that which was contended by Tomkins below does not affect the outcome of this appeal. If affected by jurisdictional error, the decision (or relevant part of it¹⁸) is “in law … no decision at all”.¹⁹

15. As a result of finding this part of the decision void for jurisdictional error, the primary judge found the adjudicator’s decision should be adjusted, so that the amount payable by York was increased by $4,764,178, for the value of the façade works completed by Tomkins.²⁰

The grounds of the appeal

16. York appeals this part of the primary judge’s decision on the following grounds:First, that the primary judge erred in concluding, by inference, that the adjudicator failed to consider the matters he was required to consider under s 88(2)(d) of the BIF Act (Reasons at [162]).Second, that the primary judge erred in finding that the adjudicator only made a conditional finding as to defective work (Reasons at [160]).Third, that the primary judge erred in finding that there was no foundation for the adjudicator’s finding of the amount of $4,764,178 as an estimated cost of rectifying the work (Reasons at [161]).Fourth, that the primary judge erred in concluding that it was illogical and incoherent for the adjudicator to decide that the value of the façade work was $6,802,706 and then value the estimated cost of rectifying the façade at $4,764,178 (Reasons at [162]) in circumstances where $4,764,178 was the value of the deduction identified in the payment schedule and the s 88(2)(d) material.²¹

Jurisdictional error

17. The only basis on which an adjudicator’s decision may be challenged is by invoking the supervisory jurisdiction of this Court on the basis of jurisdictional error.²² There is no appeal from an adjudicator’s decision under s 88 of the BIF Act, and such decisions are not reviewable under the Judicial Review Act 1991 (Qld).²³

18. In broad terms, the valid exercise of an adjudicator’s jurisdiction is conditioned on the adjudicator carrying out the function conferred on them by s 88(1), by a process which considers the matters set out in s 88(2) and does not consider the matters set out in s 88(3) of the BIF Act, giving reasons as required by s 88(5) and affording both parties procedural fairness.²⁴

19. An adjudicator who purports to make a decision, but in doing so fails to perform the function conferred on them by s 88(1), makes an error which is jurisdictional,²⁵ rendering the decision invalid.

20. One element of the argument in this case, at least at first instance, was that the adjudicator’s decision was, in one respect, “illogical and incoherent”. However, it was not disputed that illogicality or incoherence of reasons (or reasoning) does not, of itself, amount to jurisdictional error. As Brereton J said in City of Ryde v AMFM Constructions Pty Ltd [2011] NSWSC 1469 at [9]:

“… The significance of the reasons, or their inadequacy, is that in the context of the surrounding material they may reveal jurisdictional error, or that the adjudicator has not performed the task of determining an adjudicated amount by reference to the specified relevant factors [under the legislation].”

21. There will, however, have been a failure to exercise jurisdiction where “the reasons do not reveal any foundation or logical basis for the decision”.²⁶

22. The key enquiry in this case is whether the adjudicator performed the task required of him under s 88(1) of the BIF Act, namely, to decide the amount of the progress payment, if any, to be paid by York to Tomkins. This task required the adjudicator to determine “the value of construction work carried out” (s 71(b)) which in turn required the adjudicator to have regard to the factors listed in s 72(1)(b), in particular, “if any of the work is defective, the estimated cost of rectifying the defect” (s 72(1)(b)(iv)).²⁷

Argument before the adjudicator

23. It is relevant to understand the way York put its argument to the adjudicator.

24. York’s response to Tomkins’ payment claim included a table headed “work not in accordance with contract”. One of the items of construction works in this table is the façade. The “value of deduction” for this item is $4,764,178. In the “comments” section, the following appears:

“Full details and particulars have been previously provided in the Scott Schedule/John deduction noted herein is the value of the works undertaken to date which have not been completed in accordance with the Contract. The total value of the façade works completed as assessed earlier in this schedule are hereby reduced by this sum. In the alternative, the deduction is made pursuant to clause 29.3 and/or 37.7 of the Contract. Notice has been issued in S1168 that façade works are not in accordance with the Contract under Clause 29.3 and/or not currently in accordance with the Contract. Claim for façade rejected because the entirety of the work installed by the Contractor is currently non-compliant with the Contract. We further note deficiencies in relation to the waterproofing around installed windows (including openings not being waterproofed and a lack of waterproofing behind sliding doors in accordance with AS 4654.2), leaking façade, rusting façade members, noted in Schedule issued in S1170, S170A and S1209 including smoke seals clashing with pelmets among other things. Significant glazing removal and replacement may be required…”²⁸

25. In its submissions to the adjudicator, York explained that:

“In respect of the ‘construction works’ deductions, these are not for costs incurred by the Respondent to engage others to rectify defects and instead reflect the Superintendent’s assessment of the estimated cost of rectification (in accordance with section 72(1)(b)) due to certain works being defective or not in accordance with the Contract.”²⁹ (at [385])

26. Although described as the superintendent’s assessment of “the estimated costs of rectification”, it was not controversial that the assessment was limited to what appears in the table referred to in paragraph [24] above – that is, the estimated cost of rectification was said to be “the value of the works undertaken to date”.

27. There was information, in the Scott schedule which accompanied York’s payment schedule, about particular alleged defects in the façade works (in particular, as to waterproofing).³⁰ But there was no evidence, or submission, as to the estimated cost of rectifying any particular defects. The approach to this issue, by York, was to contend that, in the absence of a form 15, there was a risk that the entire façade would need to be replaced, the estimated cost of which was the cost of the work undertaken to that point in time (on York’s assessment) to construct the façade.

28. In York’s submissions to the adjudicator, York noted that in the first adjudication decision, the adjudicator had valued York’s “façade deduction” at $952,934 (at [401]). York identified that the superintendent had now “certified a deduction of $4,764,178.27 (excluding GST) in respect of the façade” (at [398]), which reflected the value of the works completed at that stage (on York’s assessment, of 29%). York stated that the “value of the deduction has increased because the value of the non-compliant façade work has increased” (at [403]). York submitted that it was “justified in withholding payment for the façade works completed to date (by way of this deduction) due to significant non-conformances with the contractual requirements” (at [408]). York submitted that “[w]ithholding payment is a prudent measure (permitted under the Contract) to ensure that the façade works meet all contractual obligations and safety standards before any further payments are made” (at [425]).

29. These paragraphs of York’s submissions make it clear that the figure put forward by York as the appropriate “deduction” for the potentially defective façade work was not an estimate of the cost of (actually) rectifying any defects.

The adjudicator failed to perform the task required of him

30. The adjudicator made no finding that the façade work, or any particular part of it, “is defective”. The adjudicator recorded York’s “concern” that the entirety of the façade may be defective, in particular as to weatherproofing and structural integrity (at [107]). The adjudicator found that Tomkins was required to provide a form 15, and accepted the respondent’s argument that, in the absence of a form 15, “the respondent’s concerns over the façade are not addressed” by Tomkins (at [108]). On that basis, the adjudicator accepted the respondent’s contention that the entire façade may require removal and replacement. This is not a finding that any of the construction work “is defective”.

31. Further, the adjudicator made no finding as to “the estimated cost of rectifying the defect”. In fairness to the adjudicator, he had no evidence of the estimated cost of rectifying the potential defect. All that the adjudicator had was an argument, by York, that, the “entirety of the façade installed by the claimant is rejected”, because York could not determine, without a form 15, whether the works had been completed in accordance with the contract, and that a deduction should be made “for the value of the works undertaken to date” to reflect this: in substance, that payment should be withheld until it could be determined whether the façade had been constructed in accordance with the contract. There was no evidence before, or submission made to, the adjudicator about “the estimated cost of [actually] rectifying the defect”.

32. In reaching his decision, the adjudicator adopted the figure attributed to this deduction by York as the “estimated cost of rectifying the façade”, but he did not address the statutory requirement under s 72(1)(b)(iv). In short, he did not perform the function conferred on him by s 88(1), read with s 88(2) and s 72(1). The decision was therefore made in breach of the implied condition of the statutory conferral of decision-making authority on the adjudicator – namely, that he perform the task required of him by the BIF Act.

33. The failure to perform that task is apparent from [107]-[110] of the adjudicator’s decision. It is reinforced having regard to the earlier finding made by the adjudicator, as to the value of the façade work completed at the time of the payment claim (at [75]-[79] of the decision). As the primary judge found, it was illogical and incoherent for the adjudicator to decide:on the one hand, that York had “not substantiated its assessment of the façade works completed” (as only 29%), and to value the façade work completed at that point in time at the figure claimed by Tomkins (representing 46%); andon the other hand, to “value the supposedly defective work”, on the basis that this represented the cost of the work done to that point in time, at the lower figure (representing 29%) claimed by York.

Order

37. As no error has been shown in the decision of the primary judge, the appeal should be dismissed, with costs.

38. BROWN JA: I agree with the Chief Justice that the appeal should be dismissed for the reasons set out by her Honour.

39. BRADLEY JA: I agree with the reasons of Bowskill CJ and the order her Honour proposes.

Footnotes

1. Tomkins Commercial & Industrial Builders Pty Ltd v York Property Holdings Pty Ltd [2025] QSC 261 (Reasons) at [5] and [135]. ↩

2. Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [24] per Kiefel CJ, Gageler and Keane JJ; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at [2]. ↩

3. Underlining added. ↩

4. Underlining added. ↩

5. Underlining added. ↩

6. Reasons at [103]. ↩

7. Reasons at [104]. ↩

8. Reasons at [106]. In these reasons, for ease of reference, whole dollar amounts only are referred to. ↩

9. In the adjudication application, this figure was reduced to $6,802,706, to account for “unfixed materials” (see [69] of the adjudicator’s decision). ↩

10. Reasons at [136]. The figures quoted are taken from the extract from the payment claim itself, which differ slightly from those in [136] of the Reasons. ↩

11. This is a reference to a compliance certificate for building design or specification under the Building Act 1975 (Qld). See Reasons at [143]. ↩