Introduction

The Supreme Court of Queensland’s decision in Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd [2026] QSC 21 confirms that where an adjudication decision is declared void for jurisdictional error, the Court may remit the adjudication application back to the adjudicator, even after the statutory timeframe for determining the application has expired.

The decision is significant because a successful judicial review application may no longer bring an adjudication dispute to an end. In appropriate cases, it may simply require the adjudicator to determine the application again according to law.

What happened?

Tomkins was the head contractor for the construction of a residential tower on the Gold Coast. Starline was engaged as a subcontractor.

Following termination of the contracts in September 2024, Starline issued a final payment claim for approximately $1.9 million and commenced adjudication under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act).

In separate proceedings decided in September 2025, Muir J held that the adjudicator’s decision involved jurisdictional error because the adjudicator calculated the adjudicated amount by reference to amounts paid rather than amounts certified. The adjudication decision was declared void.¹

The remaining dispute concerned the appropriate remedy. Starline sought remittal of the adjudication application to the adjudicator. Tomkins argued that no such power existed because the statutory time for determining the adjudication application had expired.

What did the Court find?

The Court has power to remit

Muir J held that the Court has power to remit an adjudication application after an adjudication decision has been declared void for jurisdictional error.

Her Honour identified four principal reasons:

• First, existing authorities either recognised or assumed the existence of a remittal power as part of the Court’s supervisory jurisdiction.
• Second, although the BIF Act imposes strict adjudication timeframes, those provisions do not remove the Court’s supervisory powers.
• Third, s101(3)(b) of the BIF Act, which allows the Court to make ‘any other orders it considers appropriate’, is sufficiently broad to support orders accommodating the statutory timing requirements.
• Fourth, where an adjudication decision was made within time but later declared void, there is a sufficient connection between the Court’s decision and orders dealing with the timing consequences of that invalidity.

Importantly, the Court distinguished the Court of Appeal’s finding in Civil Contractors (Aust) Pty Ltd v Galaxy Developments Pty Ltd², where it was found a decision delivered late was void. In Tomkins, the adjudication decision was made within time but was later found to be invalid for an unrelated jurisdictional error.

The Court can reset the adjudication timetable

Having determined that remittal was available, Muir J ordered that the adjudicator’s time under s85 of the BIF Act would recommence from the date the adjudicator received notice of the remittal order.

In practical terms, the statutory adjudication clock was reset.

That aspect of the judgment is likely to be of particular significance in future judicial review proceedings because it overcomes the obvious difficulty that the statutory time for determining the application had already expired.

Remittal was appropriate on the facts

The Court also held that remittal should be ordered as a matter of discretion.

The identified error was narrow and readily capable of correction. The adjudicator could reconsider the calculation using the existing material before them.

The Court rejected Tomkins’ submission that the parties should instead proceed to final litigation. Her Honour emphasised that disputes concerning final contractual rights are separate from the interim payment regime established by the BIF Act.

An appeal has been filed.

What do you need to do?

Parties considering judicial review of adjudication decisions should reassess their assumptions about the likely outcome.

Following Tomkins:

• establishing jurisdictional error may not bring the adjudication process to an end;
• courts may favour remittal where the identified error is confined and capable of correction; and
• judicial review may delay payment, but not necessarily prevent a fresh adjudication decision being made.

Claimants should also take comfort that a successful challenge to an adjudication decision will not necessarily require the process to start again from the beginning.

Why is it important?

The decision reinforces the central purpose of the BIF Act: maintaining cash flow through the construction industry.

Historically, some respondents may have viewed judicial review as a path to permanently overturning an adverse adjudication outcome. Tomkins reduces the attractiveness of that strategy where the identified error can be corrected efficiently through remittal.

The judgment also provides some clarity on a question that had remained unresolved in Queensland. The Court has confirmed not only that remittal is available, but also that it can make orders accommodating the statutory time limits so that a fresh adjudication decision may be made lawfully.

The practical message is clear. Successfully challenging an adjudication decision does not necessarily end the adjudication. It may simply send the dispute back to the adjudicator for another determination.

How can HWLE help you?

HWLE regularly advises principals, contractors, subcontractors and consultants on security of payment claims, adjudications and judicial review proceedings throughout Australia.

Our Construction and Infrastructure team can assist with adjudication applications and responses, judicial review proceedings, enforcement disputes and security of payment strategy across the project lifecycle.

This article was written by Paul Gordon, Partner, and Kurt Wildermuth, Special Counsel.

¹ Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd [2025] QSC 226.

²Civil Contractors (Aust) Pty Ltd v Galaxy Developments Pty Ltd (2021) 7 QR 34.