Australia: BCIPA appeals – applying to set aside judgment by another name

A respondent who applies to the Court to challenge an adjudication decision under Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) as void will typically also seek to restrain the successful claimant from enforcing that decision and where judgment has been obtained, may elect to do so without applying to set aside the judgment or otherwise seeking interim relief. The approach could be described as a crafty attempt to avoid the mandatory requirement under section 31(4) of BCIPA of paying the adjudicated amount into Court until the challenge is resolved. However, when invited to consider whether such a payment into Court is required in those circumstances, Lyons J in Runaway Bay Investments Pty Ltd as trustee for Runaway Bay Investments Unit Trust v GCB Constructions Pty Ltd and Ors [2018] QSC 292, held that whilst not mandatory, based on the circumstances that prevailed, a payment into Court was required to ensure the policy of BCIPA was not circumvented.

Implications

If a respondent challenges an adjudication decision as void and seeks to permanently restrain enforcement in circumstances where judgment has been obtained (and does so without applying to set-aside the judgment or otherwise seeking interim relief), an appropriate, and in most cases, a necessary anterior step is for the respondent to agree to terms on payment of the disputed amount into Court until the challenge is resolved. With the recent introduction of the Building Industry Fairness (Security of Payment) Act 2017 (BIFA), this situation is now less likely to arise in respect of payment claims issued after 18 December 2018, as section 90 of BIFA stipulates that a failure by a respondent to pay a successful claimant the adjudication amount is then liable to a civil penalty of up to 200 penalty units (i.e. fines of up to approx. $25,000) and may be liable to other disciplinary action under the Queensland Building and Construction Commission Act 1991 (Qld).

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.