CGC Qld Pty Ltd v Ziegel Co Pty Ltd [2026] QSC 224

Andrew Orford  |  Ren Shike  |  Ada Harvey

Key takeout

• Parties may ‘drift’ into a construction contract for the purpose of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act) through their conduct, even where no subcontract or novation is signed.
• A consistent course of dealings, including the performance of work, agreed rates and payment claims, may be enough to establish a contract, particularly where the parties have agreed how work is to be valued.
• Reference dates may be inferred by the parties’ dealings.
• An adjudicator has the power to decide whether further submissions requested by the adjudicator were properly made, including for example where the submissions are received after the deadline set by the adjudicator.  

Facts

In July 2024, CGC Qld Pty Ltd (CGC) engaged Brizmasonry Pty Ltd (Brizmasonry) under a written subcontract to perform construction works.

In November 2024, Brizmasonry informed CGC that a related entity, Ziegel Co Pty Ltd ATF Norcott Family Trust (Ziegel), would perform the remaining works and sought CGC’s consent to novate the subcontract. Despite the proposed novation not being executed and no written subcontract being signed, Ziegel commenced and continued performing the works.

In February 2025, Ziegel provided CGC with a schedule of rates and requested a work order. CGC did not respond. Despite this, CGC paid or partly paid Ziegel’s payment claims for contract works and variation works in accordance with the schedule of rates over several months. Payment certificates issued by CGC identified Ziegel as the subcontractor, albeit noting that no signed subcontract existed.

On 29 August 2025, Ziegel issued a payment claim for $81,666. CGC did not pay the claim, following which Ziegel applied for adjudication under the BIF Act. The adjudicator determined the application in Ziegel’s favour awarding $79,531.

CGC applied to the Supreme Court of Queensland seeking declarations that the adjudication decision was void. CGC contended that:

• no construction contract existed between CGC and Ziegel;
• the payment claim was made before the relevant reference date; and
• the adjudicator committed jurisdictional error by considering further submissions that were not ‘properly made’ because they were lodged 24 minutes after the deadline the adjudicator had set.

Decision

Hindman J dismissed CGC’s application and upheld the adjudication decision in favour of Ziegel.

Construction contract existed

Her Honour found that a construction contract existed for the purposes of the BIF Act, notwithstanding the absence of a signed subcontract or executed novation. The test was whether there was a sufficiently concluded, bilateral state of affairs by the time of the payment claim. Ziegel performed the work at CGC’s request, and CGC paid four earlier claims calculated on Ziegel’s rates. That was at least an ‘other arrangement’ under s 64 of the BIF Act. Further, the parties had agreed how the work would be valued.

Payment claim made after the reference date

CGC’s argument that the payment claim was made before the relevant reference date was rejected. CGC’s automated reminders to submit claims before the 25th, and the parties’ course of dealing, established a reference date of the 25th of each month. The payment claim was validly made in respect of the 25 August 2025 reference date on 29 August 2025.

Adjudicator entitled to consider late submission

The Court also rejected the challenge to the adjudicator’s consideration of further submissions lodged 24 minutes out of time. Her Honour held that s 84(2) of the BIF Act empowers an adjudicator to request further submissions and prescribe the timeframe for their provision, while s 84(4) confirms that an adjudicator’s power to decide an application is not affected by a party’s failure to make a submission within time. Unlike statutory time limits, such as those that apply to applications and responses, a deadline for further submissions set by the adjudicator is not jurisdictional. Whether late submissions are ‘properly made’ (and so able to be considered under s 88(2)) is for the adjudicator to decide, and by considering the late further submissions, the adjudicator implicitly decided they were properly made.