Platform Constructions Pty Ltd v Fourth Dimension Au Pty Ltd ATF BD Hope Unit Trust & Ors [2022] QSC

Andrew Orford | Sarah Cahill | Joseph Ryan

Key takeouts

• A claimant will not be in breach of the obligation to provide a copy of an adjudication application to the respondent under section 79(4)(a) of the Building Industry Fairness (Security of Payment) Act 2017 (QLD) (BIF Act) if it fails to provide a copy of the contract provided to the Registrar.  The claimant satisfied its obligations under section 79(4)(a) by delivering to the respondent a copy of the application document given to it by the Registrar after filing per the definition of ‘copy’ in section 79(6).  

• Despite this decision, parties should continue to err on the side of caution and give the respondent to an adjudication application all relevant information to know precisely where it stands.

Facts

In 2023 Platform Constructions Pty Ltd (Platform) entered into a contract with Fourth Dimension Au Pty Ltd (Fourth Dimension) for a building project on the Gold Coast (contract).  Fourth Dimension brought two adjudication applications under the BIF Act seeking payment of money under the contract.

The first adjudication

The adjudicator’s registration lapsed two days prior to him making the decision in relation to the first adjudication. Accordingly, the parties agreed and the court accepted that his decision was to be declared void and the adjudication decision should be removed from publication.

The second adjudication

In the second adjudication, the adjudicator determination that Platform was to pay Fourth Dimension $135,208 and 100% of the adjudication fees. 

Platform applied to the court for a declaration that the second adjudication determination was void and liable to be set aside because Fourth Dimension failed to comply with requirements of section 79(4)(a) of the BIF Act.  Section 79(4)(a) requires a claimant to give the respondent a copy of the adjudication application (together with submissions) within four business days of filing the application with the Registrar.  The approved form for an adjudication application under the BIF Act specifies that the claimant must attach a copy of (among other things) the relevant construction contract. 

Platform’s solicitor had attempted to provide a copy of the application together with the contract, however it was rejected by the applicant’s solicitors inbox due to size restrictions. 

Platform argued that:

• Fourth Dimension failed to give Platform a complete copy of the second application because it failed to provide a copy of the contract;
• the clear purpose of section 79(4) is to give the respondent to an adjudication application all relevant information to know precisely where it stands and to allow it to make a decision whether to maintain the dispute or to make the payment claimed;
• there must be strict compliance with the statutory provisions relevant to the adjudication process requiring a respondent to give a complete copy of all that constituted the adjudication application;
• the contract forms part of the relevant information required, therefore the adjudicator’s jurisdiction was not enlivened.

In response, Fourth Dimension argued that:

• it complied with the BIF Act by providing Platform with the adjudication application and supporting submissions, contending that section 79(4)(a) and 79(4)(b) only requires the delivery of these documents and the contract was neither part of the adjudication application nor a submission;
• even if it did not comply, the failure to provide Platform with the contract did not deprive the adjudicator of jurisdiction to make the adjudication decision.

Decision

Platform’s application was dismissed. The court found that Platform failed to demonstrate that Fourth Dimension had not complied with section 79(4). 

The court also considered the definition of ‘copy’ in section 79(6) of the BIF Act, and how the term is used in conjunction with an ‘adjudication application’.  Section 79(6) provides that a ‘copy’ of an adjudication application, includes ‘a document containing details of the application given to the claimant by the registrar for the purpose of the claimant complying with the claimant’s obligation under 79(4)(a).’

The court found that:

• section 79(6) should be understood to enlarge the ambit of what constitutes a copy of an adjudication application, rather than as enlarging the ambit of a claimant’s obligation under section 79(4)(a);
• a copy of any adjudication application means a document of a particular description that contains details of the adjudication application provided to the BIF Act Registrar;
• including a document that is something other than an adjudication application, would confer a meaning additional to the ordinary meaning of the word ‘copy’.