When an application form isn’t an application form

01 July 2024

Following several Queensland court decisions which strictly interpreted the legislative requirement to serve a ‘copy’ of an adjudication application, on 6 June 2024 Queensland’s security of payment legislation was amended to clarify that service of an adjudication application includes service of the document given by the adjudication registry to a claimant following lodgement of an adjudication application, in addition to consequential amendments that retrospectively validate service of such a document.

What did the Court previously decide?

In December last year, the Supreme Court of Queensland in Iris Broadbeach Business Pty Ltd v Descon Group Australia Pty Ltd & Anor [2023] QSC 290 held that that by providing a the respondent with a copy of the form the claimant received from the adjudication registry following its electronic lodgement of the adjudication application to the respondent, the claimant had not satisfied the requirements of section 79(3) of the Building Industry Fairness (Security of Payment) Act 2017 (BIF Act) to give a copy of the adjudication application.

That was because the adjudication registry’s system produced a summary of the application form, not the required form.

Consequently, the Court declared the adjudicator’s determination void and set it aside.

The decision in Iris again highlighted the importance of strict compliance with procedural formalities for valid adjudication applications in Queensland, including those that went to form rather than substance.

What happened?

To address the impacts of this decision, not only has section 79 of the BIF Act been amended to expressly state that for the purposes of service on a respondent, a ‘copy’ includes the document given to the claimant by the adjudication registry containing details of the adjudication application (Registry Summary), the new Part 8D validates previous adjudication applications whereby the claimant did not give a copy of the ‘approved form’ to the respondent and instead gave a copy of the Registry Summary by:

  • expressly validating previous adjudication decisions where only a copy of the Registry Summary was served, thereby preventing jurisdictional challenges to those decisions (even where proceedings have already been commenced);
  • providing that any court declarations that an adjudication decision was void due to the service of a Registry Summary are of no effect;
  • if an adjudication decision that was declared by a court as void provides for the respondent to pay an amount, requiring the respondent to make payment in accordance with the BIF Act, stating that the Respondent is taken to have received a copy of the adjudicator’s decision 30 days after the commencement of the legislative changes; and
  • requiring an adjudication application to be redecided where an adjudicator had determined that it had no jurisdiction because of a failure by the claimant to give ‘a copy’ of the adjudication application as required under the previous section 79(3) of the BIF Act.

Why is this important?

The result of these amendments could be significant for parties to previous adjudications where a claimant was found to have not complied with the requirements of section 79(3) by serving a copy of the form automatically generated by the adjudication registry during electronic lodgement.

Furthermore, the new Part 8D may result in adjudications being redecided where an adjudicator had previously determined that it did not have jurisdiction because the claimant did not give ‘a copy’ of the adjudication application.

These amendments also prevent a respondent from relying on this decision to support an assertion that service of the document automatically issued by the adjudication registry following the electronic lodgement of an adjudication application does not satisfy the requirements of the BIF Act.

What do you need to do?

These developments confirm the need to take great care in preparing and lodging adjudication applications but do provide additional certainty when using electronic lodgement of adjudication applications in Queensland.

The amendments to section 79 of the BIF Act prevent the arduous task of a claimant from having to take a photo or screenshot of each page of the electronic adjudication application. An approach that Her Honour Iris Broadbeach Business Pty Ltd v Descon Group Australia Pty Ltd & Anor [2023] QSC 290 previously considered was ‘possible and there is no evidence to suggest its production is onerous or time-consuming’. 1

How can HWLE help you?

We have considerable experience in relation to the BIF Act and our lawyers can provide tailored advice at all stages of the process.

This article was written by Colin Harris, Partner and Kelly Brook, Senior Associate.

1Iris Broadbeach Business Pty Ltd v Descon Group Australia Pty Ltd & Anor [2023] QSC 290 at [100].

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