The parties to a design and construct contract were in dispute about whether an adjudication decision was valid. That included disputes on a number of matters including what constituted the relevant payment schedule under s 69 of the Building Industry Fairness (Security of Payment) Act 2017 (a superintendent’s determination or a subsequent letter from a solicitor) and whether the adjudicator could rely on a statutory declaration and expert report in the determination of delay costs claims and whether the reasons in that regard were unsatisfactory.
The Court upheld the Applicant’s grounds on the former issue and declared the decision void. The Court accepted the Applicant’s arguments about the payment schedule, finding that the first of the documents was not a schedule (including because the superintendent only “recommended” payment) and was not “identified” in the Adjudication Application in the manner the statute required. However the Court rejected the Applicant’s grounds on the latter argument, finding that the adjudicator was entitled to rely on the material before him and that his reasons were not deficient.
The Court of Appeal later upheld an appeal by the Respondent and overruled the original decision that the Superintendent’s decision was not a payment schedule (finding that it was, as the Respondent had submitted below): [2021] QCA 117.
Michael Trim appeared for the respondent, instructed by CDI Lawyers for the first respondent as town agents for Jackson McDonald.
The judgment is published here.
