It is well known that challenging decisions made by adjudicators
under the Building and Construction Industry Payments Act
2004 (Qld) (BCIPA) is very difficult.
The Supreme Court of Queensland decision in Thiess Pty Ltd v
Warren Brothers Earthmoving Pty Ltd is a recent example where
a challenge to a BCIPA adjudication was successful - in interesting
On 31 December 2011, Warren Brothers delivered a payment claim
to Thiess claiming more than $500,000. The dispute centred on item
1 of the payment claim, where Warren Brothers claimed $101,032 from
Thiess delivered a payment schedule disputing the payment claim
on a number of grounds, specifically alleging that an amount of nil
was payable for item 1.
After receiving the payment schedule, Warren Brothers advised
Thiess (through a document entitled 'WBE's response to
payment schedule') that it had recalculated the amount of its
payment claim and was reducing the amount claimed for item 1 by
more than $60,000.
On 30 January 2012, Warren Brothers brought an adjudication
application under the BCIPA in relation to its claim.
In its adjudication application, Warren Brothers advised the
adjudicator that it had recalculated its claim as set out in the
'WBE's response to payment schedule' document. In its
adjudication response, Thiess also expressly pointed out to the
adjudicator that Warren Brothers had reduced its claim for item
On 20 February 2012, the adjudicator delivered his decision.
Despite the concessions made by Warren Brothers in relation to
item 1 of the payment claim, the adjudication decision awarded
$101,032.48 to Warren Brothers for item 1, with the total
adjudication in favour of Warren Brothers amounting to $480,035.00.
There was an obvious error by the adjudicator in relation to item
When the error was brought to the adjudicator's attention,
the adjudicator wrote a letter to the Court and the parties stating
Although I was fully aware of the submissions made by the
parties as it relates to the concession made by the claimant and
acknowledged by the respondent, I failed to remind myself of the
concession during my deliberations and final drafting of the
decision, and I accept full responsibility for my mistake and any
resulting consequence or action to be taken in this regard by the
Court or by the Registrar. Simply put, 'I forgot'.
The Court's decision
Her Honour Justice Ann Lyons declared the entire adjudication
decision to be void.
Her Honour held that, in failing to take into account the
submission of Thiess in its adjudication response, the adjudicator
failed to take into account something he was required to take into
account under the BCIPA and that, as such, the entire adjudication
decision was void.
In reaching her decision, her Honour expressed the view that
this was not a mistake or error that resulted from an accidental
slip or omission, so the adjudicator's error could not be
corrected as a 'clerical mistake' under section 28 of the
BCIPA or under the 'slip rule' in rule 388 of the
Uniform Civil Procedure Rules 1999 (Qld).
Further, her Honour considered that under the BCIPA there was no
scope for the incorrect part of the adjudicator's decision to
be severed from the rest of the decision. This meant that her
Honour had no option but to declare the entire decision void. Her
Honour expressed the view that legislative reform needs to be
considered in relation to this aspect of the BCIPA regime.
The case confirms that a jurisdictional error that affects part
of an adjudication decision will render the entire decision void.
In this case, an error over an amount of approximately $60,000
invalidated the entire decision in favour of Warren Brothers for
It will be interesting to see whether her Honour's comments
about legislative reform will result in an amendment to the BCIPA.
In the meantime, those involved in adjudication proceedings should
keep this decision in mind when considering challenges to
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guide to the subject matter. Specialist advice should be sought
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