What to do if you lose an adjudication under the Building Industry Fairness (Security of Payment) Act 2017 (Qld)

A claimant who is dissatisfied with the decision of an adjudicator under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act) still has options to pursue payment of amounts not awarded by the adjudicator. These depend on whether or not the adjudicator decided they had jurisdiction to determine the application.

Understanding the decision made by the adjudicator

For an adjudicator to have the power (or "jurisdiction") to decide an adjudication application, they must be persuaded about:

1. the existence of a construction contract between the claimant and the respondent, to which the BIF Act applies;

   
   

2. the service by the claimant on the respondent of a valid payment claim;

   
   

3. the making by the claimant of an adjudication application to the adjudication registrar; and

   
   

4. the reference of the adjudication application to an eligible adjudicator, who accepts the application.

If an adjudicator is not satisfied of the existence of these four (4) essential statutory requirements, it does not matter how compelling or obvious the claimant's submissions are about their entitlement to the amounts claimed in the adjudication application, because the adjudicator is not empowered to make a decision about the amount due to the claimant.

When an adjudicator makes a decision of this kind, we refer to it as a "no jurisdiction" decision.

How to avoid no jurisdiction decisions by adjudicators

The most common reason for no jurisdiction decisions by adjudicators is a technical failing in the claimant's payment claim or adjudication procedures. For example:

1. the payment claim was not made in respect of an available reference date;

   
   

2. the payment claim was otherwise not a valid payment claim;

   
   

3. the payment claim was not properly served on the respondent; or

   
   

4. the adjudication application was not made within time or was not supported by sufficient evidence.

The precise reason will be stated in the reasons for the adjudicator's decision.

These are avoidable errors, and sophisticated contractors have systems and procedures in place to make sure that each adjudication application they make does not fall over because of one of these errors.

At Roberts Litigation, we encourage smaller contractors to adopt similar systems. The requirements are not onerous, but they are strict. A simple checklist-style procedure is all that is needed.

If you need help implementing an appropriate system:

1. you can download our free adjudication readiness checklist here; or

   
   

2. you can speak to one of our lawyers for a no-cost review of your approach to payment claims and adjudications.

Options available to a claimant who lost an adjudication decision

The most common advice for a claimant who loses an adjudication application because of a no jurisdiction decision is to simply prepare to make a new adjudication application. However, claimants should ensure they first review their payment claim and adjudication procedures so the same outcome is not repeated.

If you need help preparing to make a new adjudication application, our lawyers are experts in Queensland security of payment laws.