You have an adjudicator's decision in your favour under the
Building and Construction Industry Payments Act 2004 (Qld) (BCIPA)
however part of your claim or part of the adjudicator's
decision is invalid – what happens now? The answer,
according a recent Queensland Supreme Court decision, is that the
whole decision will fall over even if only one small discrete part
of the claim or the adjudicator's decision is invalid.
What you need to know: the claimant's perspective
If you are a claimant seeking to make a claim under the BCIPA,
check that everything you are claiming can be validly claimed under
the BCIPA. Examples of what cannot be claimed include (among many
claims which have been decided by an earlier adjudicator
(whether awarded or not);
claims which are not for construction work (or for related
goods or services), such as the extraction, whether by underground
or surface working, of minerals, including tunnelling or boring, or
constructing underground works, for that purpose (expressly not
construction work under the BCIPA); or
future costs, i.e. costs for which you have neither incurred
nor accrued a liability for (unless your contract provides you are
entitled to claim such costs, which is rare).
If you as a claimant include an amount which cannot be validly
claimed in your payment claim and adjudication application and the
adjudicator decides an amount in your favour based on an invalid
part of the claim, then the whole adjudicator's decision will
be void. You then will need to start the whole BCIPA process
again if you still wish to seek relief under the BCIPA.
What you need to know: the respondent's perspective
If you are a respondent, the avenues available to you to seek a
court order that a whole adjudicator's decision is void, even
if only part of it is invalid, have expanded.
This principle will assist a respondent if an adjudicator's
decision is made awarding an amount to the claimant and the
respondent can establish that part of the adjudicator's
decision is void. In that situation the whole adjudicator's
decision will be void.
For example, the whole of an adjudicator's decision for say
$20 million, which includes a variation for future prolongation
costs (not a valid claim) worth say $50,000, may be declared
The principle that the whole of an adjudicator's decision is
void if part of that decision is void was determined by the recent
Queensland Supreme Court decision of James Trowse Constructions Pty
Ltd v ASAP Plasterers Pty Ltd & Ors  QSC 145.
ASAP Plasters made an adjudication application under the BCIPA
including claims for a number of variations. The adjudicator
decided amounts for ASAP Plasterers including for "Variation
24" which made up about 10% of the whole claim. The
adjudicator decided "Variation 24" on a point with
neither party had put forward in their submissions; therefore the
adjudicator denied the parties natural justice because they did not
have an opportunity to make arguments about the point which
ultimately decided the claim for "Variation 24". A
claim for which an adjudicator fails to afford the parties natural
justice is void. That was only the case for "Variation
24" not the other parts of the adjudicator's
decision. However because just one part of the
adjudicator's decision was void the whole adjudicator's
decision was void. One part of an adjudicator's decision which
is invalid cannot be severed from the main valid part of an
adjudicator's decision to save the rest of the adjudicated
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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