The complete guide to adjudicators under the Building Industry Fairness (Security of Payment) Act 2017 (Qld)
- B Roberts
- Oct 25
- 4 min read
Who or what is an adjudicator under the BIF Act?
An adjudicator under the BIF Act is an individual registered under chapter 5, part 2, division 2 as an adjudicator.[1]
An individual becomes registered if they: (a) apply to the registrar for registration as an adjudicator,[2] (b) hold a requisite adjudication qualification,[3] (c) are a suitable person to be registered as an adjudicator having regard to their character, experience and other related matters[4] and (d) have their application granted by the registrar and receive a certificate of registration.[5]
How does a person apply to become an adjudicator under the BIF Act?
An application to become an adjudicator under the BIF Act is to be made using the approved form and must:[6]
be signed by or for the applicant;
be accompanied by the fee prescribed by regulation for the application; and
state:
the name and address of the applicant;
an address in Queensland for service of documents;
the experience and qualifications of the applicant, relevant to deciding adjudication applications; and
other details, required in the approved form for the application, to enable the registrar to decide whether the applicant is a suitable person to be registered as an adjudicator.[7]
The approved form is, at the time of writing, a 'Form s159 Adjudicator Registration Application' (version effective July 2023), presently available from the QBCC's website.[8]
What makes a person ineligible to be registered as an adjudicator?
A person is ineligible to be an adjudicator if they do not hold an adjudication qualification or some other equivalent qualification.[9] A person may also be ineligible if they are not a suitable person, by reason of criminal, disciplinary, solvency or competency matters which are listed in section 161(2).
What makes an adjudicator ineligible to adjudicate an adjudication application?
An adjudicator is ineligible to adjudicate an adjudication application if the adjudicator is: (a) a party to the construction contract to which the application relates or (b) has a conflict of interest prescribed by regulation.[10] The prescribed conflicts are circumstances where:[11]
the adjudicator or a family member of the adjudicator—
is, or is contracted to be, employed or otherwise engaged by the claimant or respondent for the adjudication application; or
is an owner of a building, structure or land in relation to which construction work or the supply of related goods and services to which the adjudication application relates is being carried out; or
is carrying out construction work or the supply of related goods and services in relation to a building, structure or land to which the adjudication application relates; or
has a direct or indirect pecuniary or other interest in a matter to be considered during the adjudication that could conflict with the proper performance of the adjudicator in adjudicating the adjudication application; or
the claimant or respondent for the adjudication application is a family member[12] of the adjudicator.
What matters must an adjudicator appointed under the BIF Act decide?
An adjudicator appointed to decide an adjudication application under the BIF Act must decide: (a) any applications for extensions of time under section 83;[13] (b) whether they have jurisdiction to adjudicate the application;[14] and (c) whether the application is frivolous or vexatious.[15] Provided the adjudicator decides they have jurisdiction, they must also decide: (a) the amount of the progress payment, if any, to be paid by the respondent to the claimant;[16] (b) the date on which any amount became or becomes payable;[17] and (c) the rate of interest payable on any amount.[18]
An adjudicator may also (but is not required to) decide the proportion in which the parties are liable for payment of the adjudicator’s fees and expenses.[19]
What must an adjudicator consider in making a decision under the BIF Act?
In making a decision under the BIF Act, an adjudicator must consider: (a) the provisions of chapter 3 of the BIF Act and, to the extent they are relevant, the provisions of part 4A of the Queensland Building and Construction Commission Act 1991; (b) the provisions of the relevant construction contract; (c) 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; (d) 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; (e) the results of any inspection carried out by the adjudicator of any matter to which the claim relates.[20] Additionally, an adjudicator must not consider: (a) an adjudication response, to which the adjudication application relates, that was not given to the adjudicator within the time required under section 83 and (b) 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.[21]
The valid exercise of an adjudicator’s jurisdiction is conditioned on their arrival at a conclusion by a process which accords with those two requirements.[22]
Footnotes
[1] BIF Act s 5 and sch 2 definition 'adjudicator'.
[2] Ibid s 159.
[3] Ibid s 161(1).
[4] Ibid s 161(2).
[5] Ibid ss 163(1) and 164.
[6] Ibid s 159(2)(a)(i).
[7] Ibid s 159(2).
[9] BIF Act s 161(1).
[10] Ibid s 80.
[11] BIF Regulation s 13.
[12] Family member means: (a) the adjudicator’s spouse or (b) a grandparent, parent, uncle, aunt, brother, sister, cousin, child, nephew, niece or grandchild of: (i) the adjudicator; or (ii) the adjudicator’s spouse; or (c) a spouse of a person mentioned in (b).
[13] BIF Act s 84(1)(b).
[14] Ibid s 84(2)(a).
[15] Ibid.
[16] Ibid s 88(1).
[17] Ibid.
[18] Ibid.
[19] Ibid s 95(5).
[20] Ibid s 88(2).
[21] Ibid s 88(3).
[22] Acciona Agua Australia Pty Ltd v Monadelphus Engineering Pty Ltd [2020] QSC 133, [35], [36].