In Iris Broadbeach Business Pty Ltd v Descon Group Australia Pty Ltd & Anor [2023] QSC 290 (Iris Broadbeach), Williams J found that an adjudication decision was invalid because the form that the claimant gave the respondent as part of the adjudication application was not the “approved form”.
The form in question was the document automatically generated by the Adjudication Registry and provided to claimants after they electronically make an adjudication application (QBCC PDF Form). The QBCC PDF form contains some, but not all, the information that is populated when completing the “approved form” and making an adjudication application. The QBCC PDF Form is typically given to respondents when a claimant serves their adjudication application electronically, evidently on the incorrect assumption that this receipt document provided by the Adjudication Registry satisfies the requirement for the approved form to be given to the respondent.
To properly consider this decision, and the background of the approved form, and its importance, it helps to do a quick recap. In 2015, Queensland underwent a complete overhaul of its Security of Payment regime, departing from the notoriously claimant-friendly Authorised Nominated Authority system and assigning the adjudicator appointment responsibility to the Adjudication Registry, run out of the office of the Queensland Building and Construction Commission. When this occurred, a requirement was implemented whereby claimants must complete a form, referred to as the “approved form”, as part of their adjudication application. The approved form outlines specific details relevant to the adjudication dispute to facilitate and assist with the administrative processing of the adjudication application, including appointment of a suitable adjudicator. The requirement to complete this form was specified in section 79 of the Building Industry Fairness (Security of Payment) Act 2017 (Qld), and since that time, the courts have weighed in on the importance of the form and the need for it to be given to the respondent – the Iris Broadbeach case being the most recent.
When making an adjudication application, a claimant has two choices. They either:
- manually complete this form, venture to the QBCC’s office, and make the adjudication application in person (Manual Form); or
- electronically complete the same details contained in the Manual form through the QBCC’s website, upload their adjudication application material to the QBCC’s online platform and make their adjudication application electronically (Electronic Form).
When a claimant adopts the second option, it is provided the QBCC PDF form, an automatically generated receipt which contains information regarding the adjudication application, including details of the claimant, respondent, project, payment claim, and payment schedule.
It is this second option that was the subject of scrutiny in the recent Supreme Court Decision of Iris Broadbeach. It was put to the Court to decide whether the claimant’s provision of the QBCC PDF form to the respondent satisfied the requirement of the BIF Act for a claimant to provide a respondent with the “approved form” when it gives a complete copy of the adjudication application.
Notably, the Queensland Court of Appeal has previously held that a failure to give the respondent a copy of the approved form as part of the adjudication application will devoid an adjudicator of jurisdiction and render any decision made by an adjudication in those circumstances invalid.
In finding that the adjudicator had committed a jurisdictional error, Williams J held that “…for the purposes of s 79(2)(a) of the BIF Act, the QBCC PDF form is not “the approved form” for an adjudication application.” Her Honour then went on to find that as a consequence, a complete copy of the adjudication application had not been given to the respondent.
In coming to that decision, Her Honour explained:
[57] … it is the form approved for the purpose of the claimant applying to the registrar for an adjudication of a payment claim. Therefore, it is the document which the claimant lodges, either electronically or in hardcopy, with the QBCC to be in the approved form.
[58] Logically, this cannot be what is provided back from the QBCC registry following submission of an adjudication application. It is the adjudication application itself which is to be in the approved form.
[59] The two forms available on the QBCC website, namely the Electronic form and the Manual form, are for the purposes of s 79(2)(a) the “approved form”.
In relation to whether the QBCC form, in substance, satisfied the requirements of the approved form, Williams J explained that:
- the differences between the Electronic Form and the approved form “are not trivial and the differences are such as to result in the copy of the QBCC PDF form not being a “copy” of the Electronic form”; and
- the requirement of giving a full copy of the form electronically completed “is possible and there is no evidence to suggest its production is onerous or time-consuming such as to make it inconsistent with the timeframes in the statutory regime.” The evidence that was produced to demonstrate that this was possible was a screen shot of each page of the QBCC’s platform when electronically making an adjudication application.
The effect of those findings above was that the adjudicator did not have jurisdiction to decide the adjudication application and the decision made by the adjudicator was therefore invalid.
Takeaway
As a result of the recent decision, it is likely that the Adjudication Registry is in the process of altering its procedures in relation to when an adjudication application is given electronically, to ensure that the precise details and information in the approved form is produced.
Until such procedure is amended, every electronically made adjudication application will be invalid, unless the claimant screenshots each page they complete when making the application through the QBCC’s platform and gives those pages to the respondent when it gives a copy of its adjudication application.
CDI will keep you informed of any developments.
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