Equinox Construction Pty Ltd v Henning & Anor [2021] QSC 223

Andrew Orford, Matt Hammond, Charlotte Lane

Key takeouts

Courts will strictly construe the requirement for a claimant to ‘give’ a copy of an adjudication application to a respondent under section 79(3) of the Building and Construction Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act).  While an adjudication application may be validly served by post under the Act, any claimant wishing to do so needs to be able to prove service.  

Facts

The applicant, Equinox Construction Pty Ltd (Equinox), a building company, and the first respondent (Mr Henning), a landscaper, entered into a construction contract.  Mr Henning made a $29,255 payment claim to Equinox (payment claim).  Equinox did not respond to the payment claim.  As a result, it became liable to pay the amount claimed.  Mr Henning applied for an adjudication of the payment claim and subsequently received an adjudication decision in his favour, which he filed as a judgment debt in court.

Several months later, Equinox applied to the Queensland Supreme Court for a declaration that the adjudication decision was void on the basis of jurisdictional error, because Mr Henning did not ‘give’ Equinox a copy of the adjudication application, and the first time Equinox became aware of it was after it had been determined by the Adjudicator.

The primary issue for determination was whether Mr Henning ‘gave’ Equinox a copy of his adjudication application as required by the BIF Act. The critical issue was whether the court could overlook deficiencies in Mr Henning’s evidence and infer that Mr Henning ‘gave’ Equinox a copy of his adjudication application by posting it in accordance with the provisions of section 39A of the Acts Interpretation Act 1954 (Qld) (Acts Interpretation Act).

Decision

The service of the adjudication application was declared not effective and the adjudication determination was void.  

Section 79(3) of the BIF Act provides that where a party to a construction contract applies for adjudication of a payment claim, that party must ‘give’ a copy of their application for adjudication to the respondent.  If this step is not taken, the adjudicator has no jurisdiction to adjudicate the payment claim.

Section 39 of the Acts Interpretation Act provides that if an Act requires or permits a document to be served on a person, the document may by served on an individual by sending it by post.  Section 39A further provides that service may be effected by properly addressing, prepaying and posting the document as a letter and is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.

Ryan J explained that in order to resist the application, Mr Henning had to be able to prove that he had ‘given’ (or in other words, brought to the notice of Equinox) a copy of his adjudication application.  Importantly, Mr Henning did not send the adjudication application by registered post.   Nor was his evidence sufficient to conclude that he had, in fact, actually posted it or that it had been sent to the correct address.  In those circumstances, the deficiencies in the evidence could not be overlooked and that as a result Mr Henning was unable to rely upon sections 39 and 39A of the Acts Interpretation Act to prove service. The court was not satisfied that the adjudicator had jurisdiction to make a decision regarding Mr Henning’s payment claim.  As a result, Mr Henning was unable to rely upon the adjudication procedures of the BIF Act to recover the money he claimed to be owed by Equinox