Prior to the 2025 Christmas break, the QLD Court of Appeal in Platform Constructions considered an appeal of the respondent head contractor (Platform) of a decision of the primary judge regarding compliance with s79(4) BIF Act by the claimant subcontractor (Fourth Dimension) and upholding an adjudication decision in favour of the subcontractor.
Section 79(4) BIF Act provides that a claimant must provide a respondent within 4 business days after the adjudication application is made:
(a) a copy of the adjudication application; &
(b) submissions accompanying that application.
In October 2024, Troy Legal commented on this earlier decision (here) and the unexpected finding that a failure by the claimant to provide the respondent with a copy of the relevant subcontract included with its adjudication submissions to the QBCC did not amount to non-compliance with s79(4) BIF Act.
That earlier decision did not properly examine the respondent's arguments regarding s79(4)(b) of the Act. It also ignored the practical disadvantage faced by the respondent by not having all material submitted by the claimant within time to prepare its adjudication response.
On appeal, the parties agreed that strict compliance with s79(4)(b) BIF Act is required, otherwise an adjudication decision is invalid.
The QLD Court of Appeal revisited the respondent’s argument at first instance, that the claimant’s failure to provide the relevant subcontract to the respondent within 4 business days of submission of the adjudication application was a breach of s79(4)(b). The relevant subcontract was expressly referred to in the claimant’s submissions and 7 x pdf files comprising that subcontract were submitted with its application.
Unsurprisingly, the Court of Appeal adopted an ordinary reading of s79(4)(b) of the Act and held the claimant’s “submissions” includes all documents submitted to the QBCC and that a failure to provide a copy of the subcontract to the respondent meant that it had not complied with s79(4)(b) BIF Act and the adjudication decision was invalid.
Although it is unlikely that any claimant would have tested the procedural ambiguity in the BIF Act raised by the earlier Court decision, the overrule by the Court of Appeal offers comfort to respondents to adjudication applications in QLD that it will not be tested in the future.
For advice on your construction contract, preparation of your BIF Act adjudication application, payment claim or payment schedule, speak with a specialist Construction Contract Lawyer. For further information, contact Julian Troy at Troy Legal, julian@troylegal.com.au.
Prior to the 2025 Christmas break, the QLD Court of Appeal in Platform Constructions considered an appeal of the respondent head contractor (Platform) of a decision of the primary judge regarding compliance with s79(4) BIF Act by the claimant subcontractor (Fourth Dimension) and upholding an adjudication decision in favour of the subcontractor.
Section 79(4) BIF Act provides that a claimant must provide a respondent within 4 business days after the adjudication application is made:
(a) a copy of the adjudication application; &
(b) submissions accompanying that application.
In October 2024, Troy Legal commented on this earlier decision (here) and the unexpected finding that a failure by the claimant to provide the respondent with a copy of the relevant subcontract included with its adjudication submissions to the QBCC did not amount to non-compliance with s79(4) BIF Act.
That earlier decision did not properly examine the respondent's arguments regarding s79(4)(b) of the Act. It also ignored the practical disadvantage faced by the respondent by not having all material submitted by the claimant within time to prepare its adjudication response.
On appeal, the parties agreed that strict compliance with s79(4)(b) BIF Act is required, otherwise an adjudication decision is invalid.
The QLD Court of Appeal revisited the respondent’s argument at first instance, that the claimant’s failure to provide the relevant subcontract to the respondent within 4 business days of submission of the adjudication application was a breach of s79(4)(b). The relevant subcontract was expressly referred to in the claimant’s submissions and 7 x pdf files comprising that subcontract were submitted with its application.
Unsurprisingly, the Court of Appeal adopted an ordinary reading of s79(4)(b) of the Act and held the claimant’s “submissions” includes all documents submitted to the QBCC and that a failure to provide a copy of the subcontract to the respondent meant that it had not complied with s79(4)(b) BIF Act and the adjudication decision was invalid.
Although it is unlikely that any claimant would have tested the procedural ambiguity in the BIF Act raised by the earlier Court decision, the overrule by the Court of Appeal offers comfort to respondents to adjudication applications in QLD that it will not be tested in the future.
For advice on your construction contract, preparation of your BIF Act adjudication application, payment claim or payment schedule, speak with a specialist Construction Contract Lawyer. For further information, contact Julian Troy at Troy Legal, julian@troylegal.com.au.
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