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

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.