Forme Two Pty Ltd v McNab Developments (Qld) Pty Ltd

Case [2025] QSC 96

SUPREME COURT OF QUEENSLAND

CITATION:

Forme Two Pty Ltd v McNab Developments (Qld) Pty Ltd [2025] QSC 96

PARTIES:

FORME TWO PTY LTD (ACN 643 581 444) AS TRUSTEE FOR FORME TWO UNIT TRUST (ABN 88 242 790 970)

Applicant

v

MCNAB DEVELOPMENTS (QLD) PTY LTD (ACN 118 748 548)

First Respondent

DAVID ANDERSON (ADJUDICATOR J1078738)

Second Respondent

THE ADJUDICATION REGISTRAR (QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION)

Third Respondent

FILE NO:

BS 4589/24

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 May 2025

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2024

JUDGE:

Hindman J

ORDER:

The adjudication decision is void.  The Court will hear from the parties as to the precise form of relief and as to costs.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the applicant engaged the first respondent to assist it with a development – where the first respondent gave to the applicant a purported payment claim under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act) – where the applicant provided a payment schedule in the amount of $nil in response – where the first respondent lodged an adjudication application – where the second respondent, being the adjudicator, made an adjudication decision in favour of the first respondent – where the applicant seeks to have the adjudication decision declared void – whether the adjudication decision is affected by jurisdictional error – whether s. 75(2)(b) of the BIF Act requires that a payment claim includes a claim for payment for work actually carried out in the six-month period prior to the giving of the payment claim – whether compliance with s. 75(2) of the BIF Act is itself, as opposed to the adjudicator forming an opinion as to whether there has been compliance, a jurisdictional fact that is required to found the adjudicator’s jurisdiction to make the adjudication decision – whether any of the work claimed in the payment claim was in fact carried out in the six-month period prior to the giving of the payment claim

Building and Construction Industry Payments Act 2004 (Qld), s. 17(4), s. 17A
Building and Construction Industry Security of Payment Act 1999 (NSW), s. 13(4)(b)
Building Industry Fairness (Security of Payment) Act 2017 (Qld), ss. 75(2)(b), 75(3), 88, 101

Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd (2020) 4 QR 410, cited
Canberra Drilling Rigs Pty Ltd v Haides Pty Ltd (2019) 14 ACTLR 95, distinguished
Canberra Drilling Rigs Pty Ltd v Haides Pty Ltd [2018] ACTSC 282, cited
Commercial Fitouts Australia Pty Ltd v Miracle Ceilings (Aust) Pty Ltd [2020] SASC 11, cited
De Neefe Signs Pty Ltd v Build1 (Qld) Pty Ltd [2010] QSC 279, not followed
Downer Construction (Australia) Pty Ltd v Energy Australia (2007) 69 NSWLR 72, distinguished
EHome Construction Pty Ltd v GCB Constructions Pty Ltd [2020]…

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AGLC
Forme Two Pty Ltd v McNab Developments (Qld) Pty Ltd [2025] QSC 96
Case
[2025] QSC 96
Decision Date

CaseChat Overview and Summary

Forme Two Pty Ltd sought to have an adjudication decision declared void, which was made in favour of McNab Developments (Qld) Pty Ltd, the first respondent, under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act). The dispute arose from a payment claim made by McNab Developments to Forme Two, which was subsequently subject to an adjudication process. The second respondent, who was the adjudicator, ruled in favour of McNab Developments, prompting Forme Two to challenge the validity of the adjudication decision.

The central legal issues the court had to address were whether the adjudication decision was affected by a jurisdictional error and whether section 75(2)(b) of the BIF Act required that a payment claim includes a claim for payment for work actually carried out in the six-month period prior to the giving of the payment claim. Additionally, the court considered whether compliance with section 75(2) of the BIF Act is a jurisdictional fact necessary for the adjudicator’s jurisdiction and whether any of the work claimed was performed within the requisite six-month period.

The court found that the adjudication decision was indeed affected by a jurisdictional error. It ruled that section 75(2)(b) of the BIF Act does require that a payment claim includes a claim for payment for work actually carried out in the six-month period prior to the giving of the payment claim. The court held that compliance with section 75(2) is a jurisdictional fact, meaning the adjudicator's jurisdiction to make the adjudication decision depended on the compliance being established as a matter of fact. Since the payment claim did not sufficiently demonstrate that the work claimed was carried out within the requisite period, the court concluded that the adjudicator's decision was made in error.

Consequently, the court declared the adjudication decision void. The case will return for further directions to determine the form of relief and the allocation of costs.

Orders

Orders of the court

The adjudication decision is void. The Court will hear from the parties as to the precise form of relief and as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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