Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd [2026] QSC 21

Sian Keast | Olivia Doonan | Siobhan Beckett

Key takeouts

Where an adjudication decision under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act) has been declared void for jurisdictional error, the Supreme Court of Queensland has the power to remit an adjudication application back to the adjudicator and order the s 85 timeframe to recommence on notice of remittal.

Remittal is most suitable where the mistake is clear and limited (for example, a calculation or narrow error) and can be corrected without starting again.

Contract termination does not automatically mean parties must wait for final court proceedings; interim statutory payment rights can still be utilised if available.

Facts

Tomkins Commercial & Industrial Builders Pty Ltd (Tomkins) was the head contractor engaged for the construction of a residential tower at Main Beach on the Gold Coast. Starline Interiors Pty Ltd (Starline) was subcontracted to perform components of the construction work. The head contract and subcontract were terminated in September 2024, after which Starline issued a final payment claim in October 2024 seeking payment of $1,908,040 and lodged an adjudication application under the BIF Act.

On 11 September 2025, Muir J declared the adjudicator’s decision void for jurisdictional error, having found that the adjudicator calculated the adjudicated amount by reference to amounts paid rather than amounts certified, contrary to the submissions of both parties. We discussed this decision in our CLU One job: The outcome nobody asked for – Construction Law Made Easy.

Following the September 2025 decision, the parties were unable to agree on the form of orders to progress the matter: Starline sought remittal of the adjudication application to the same adjudicator, while Tomkins disputed the existence of any power to remit on the basis that the statutory time limits for determining the application had expired, and otherwise submitted that if such a power existed, it should not be exercised for discretionary reasons.

Decision

Power to remit

Muir J was satisfied that the Court had the power to make an order for remittal when an adjudicator’s decision had been declared void for jurisdictional error, for four reasons:

1. First, while some earlier cases made comments in obiter dicta about whether remittal is available after declaratory relief, those comments were not sufficient to overthrow the line of authority in which remittal was either assumed to be, or ruled to be, available as an aspect of the court’s inherent supervisory jurisdiction; and the authorities relied upon by the applicant often discussed the difficulties associated with remittal in terms of discretion, rather than the existence of the power itself.
2. Second, even though the BIF Act has tight deadlines (including in ss 85, 86 and 94), the Court did not read those provisions as taking away the Court’s ability to remit a matter to be decided according to law.
3. Third, the Court accepted that if the matter is remitted, the subsequent decision must be structured so it is not invalid for being ‘out of time’. Her Honour held that s 101(3)(b) (which allowed the Court to make other appropriate orders connected to its decision) was broad enough to support an order that accommodates the BIF Act’s timing requirements.
4. Fourth, in a case where an adjudication decision was made in time but later declared void for jurisdictional error after the time limits had expired, the Court said it was logical for the Court’s orders to deal with the timing consequences that flow from the decision being set aside.

Muir J also addressed the applicant’s reliance on the Court of Appeal’s decision in Civil Contractors (Aust) Pty Ltd v Galaxy Developments Pty Ltd & Ors; Jones v Galaxy Developments Pty Ltd & Ors (2021) 7 QR 34 (Galaxy). In Galaxy, the Court determined that an adjudication decision made outside the time limits under the BIF Act is invalid. In the present case, the adjudication decision was made within time but was subsequently found to be invalid for reasons unconnected to the jurisdictional time stipulations – an important distinction, because the scope of s 101(3)(b) did not arise for consideration in Galaxy.

Discretion to remit

After finding the power existed, Muir J decided it was appropriate to exercise the discretion to remit.

Lastly, while remittal does not sit perfectly with the BIF Act’s goal of speed (given the time that had already elapsed), the BIF Act’s core purpose is still prompt payment. Here, the error was narrow (paid vs certified) and could be rectified expeditiously on the existing material by recalculating, which made remittal a practical and proportionate outcome.

Tomkins argued that because the contract had been terminated, the parties should proceed to final litigation. The Court rejected that argument and treated the dispute about final rights as separate from the subcontractor’s current interim payment entitlement.

Her Honour inferred that any further litigation of the parties’ rights and responsibilities would be hotly contested and lengthy, and that waiting for final relief may be convenient and satisfactory for Tomkins but would not be so for Starline.