Procon Developments (Australia) Pty Ltd v Hi-Cal Bricklaying - [2025] QSC 67

SUPREME COURT OF QUEENSLAND

CITATION:

Procon Developments (Australia) Pty Ltd v Hi-Cal Bricklaying [2025] QSC 67

PARTIES:

PROCON DEVELOPMENTS (AUSTRALIA) PTY LTD ACN 118 367 918

(Applicant)

v

BRETT ANTHONY DAY & EMILY HALL T/A HI-CAL BRICKLAYING ABN 44 184 287 685

(First Respondent)
and
HUGO ALBERTO MEROLLA (Registered Adjudicator J15255524 under the Building Industry Fairness (Security of Payment) Act 2017)
(Second Respondent)
and
THE ADJUDICATION REGISTRAR (under the Building Industry Fairness (Security of Payment) Act 2017)

(Third Respondent)

FILE NO/S:

BS 16087 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

7 April 2025

DELIVERED AT:

Brisbane

HEARING DATE:

28 March 2025

JUDGE:

Bowskill CJ

ORDERS:

1.   Declare that the adjudication decision of the second respondent, made on 22 October 2024, in respect of adjudication application number 2643815, is invalid.

2.   The adjudication decision is set aside.

3. The adjudication application number 2643815, lodged on 13 September 2024 by Hi-Cal Bricklaying, is remitted to the Adjudication Registrar, to be referred to an adjudicator (not being the adjudicator who made the first decision) for a decision according to law, pursuant to s 79 of the Building Industry Fairness (Security of Payment) Act 2017.

4.    For the purposes of calculating the time in which steps are required to be taken in relation to the adjudication application, the date the application is made (for the purposes of the step required by s 79(4)) is taken to be the date of this order, and the date the application is received by the Registrar (for the purposes of s 79(5)) is the date the Registrar receives a copy of this order.

5. Each party is to bear their own costs of this proceeding.

The court will hear from the parties in relation to payment of the adjudicator’s fees and payment out of the moneys previously paid into court.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the first respondent made an adjudication application under the Building Industry Fairness (Security of Payment) Act 2017 (Qld), in relation to a payment claim under a construction contract with the applicant, and the adjudicator declared an adjudicated amount of $13,693.25 – where the applicant contends the adjudicator lacked jurisdiction to make a decision because there was no “reference date” for the payment claim – where the applicant also argues the adjudicator denied the parties procedural fairness by deciding a reference date which no party contended for, without giving the parties an opportunity to be heard – whether the decision should be set aside for jurisdictional error – if so, whether the application should be remitted to be considered according to law

Building Industry Fairness (Security of Payment) Act 2017 (Qld) ss 67, 70, 75, 79, 82, 84, 95

Fernandes Constructions v Tahmoor Coal [2007] NSWSC 381, cited
Ingeteam Australia Pty Ltd v Susan River Solar Pty Ltd [2024] QSC 30, applied
Plaintiff S157/2022…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] QSC 67
Decision Date: 7 April 2025

CaseChat Overview and Summary

Procon Developments (Australia) Pty Ltd brought an action against Hi-Cal Bricklaying seeking to set aside an adjudication decision made by an adjudicator under the Building Industry Fairness (Security of Payment) Act 2017 (Qld). The dispute arose from a construction contract between the parties, whereby Hi-Cal Bricklaying made a payment claim and subsequently applied for adjudication. The adjudicator determined an adjudicated amount of $13,693.25 in Hi-Cal Bricklaying’s favour. Procon Developments challenged the validity of the adjudication decision, asserting that the adjudicator erred in determining a reference date for the payment claim and that the decision lacked procedural fairness.

The primary legal issues for the court to decide were whether the adjudicator had jurisdiction to make a decision in the absence of a reference date and whether the adjudicator denied the parties procedural fairness by deciding a reference date that neither party had proposed, without providing an opportunity for the parties to be heard. The court needed to determine whether the adjudication decision should be set aside due to these alleged errors and, if so, whether the application should be remitted for reconsideration according to law.

The court found that the adjudicator lacked jurisdiction to make a decision in the absence of a reference date, as required by the Act. The court held that the adjudicator's decision to determine a reference date, which was not contended for by either party, amounted to a jurisdictional error. Furthermore, the court found that the adjudicator failed to provide procedural fairness by not allowing the parties an opportunity to be heard on the reference date. Consequently, the court set aside the adjudication decision and remitted the adjudication application to be referred to a different adjudicator for reconsideration according to law. Each party was ordered to bear their own costs of the proceeding.

The court's orders included the declaration that the adjudication decision was invalid, the setting aside of the adjudication decision, the remission of the adjudication application to the Adjudication Registrar for referral to a new adjudicator, and an order concerning the calculation of time for taking steps in relation to the remitted adjudication application. Additionally, the court directed that the parties would be responsible for their own costs of the proceeding and indicated that it would hear from the parties in relation to the payment of the adjudicator’s fees and the payment out of the moneys previously paid into court.

Orders

Orders of the court

1. Declare that the adjudication decision of the second respondent, made on 22 October 2024, in respect of adjudication application number 2643815, is invalid.

2. The adjudication decision is set aside.

3. The adjudication application number 2643815, lodged on 13 September 2024 by Hi-Cal Bricklaying, is remitted to the Adjudication Registrar, to be referred to an adjudicator (not being the adjudicator who made the first decision) for a decision according to law, pursuant to s 79 of the Building Industry Fairness (Security of Payment) Act 2017.

4. For the purposes of calculating the time in which steps are required to be taken in relation to the adjudication application, the date the application is made (for the purposes of the step required by s 79(4)) is taken to be the date of this order, and the date the application is received by the Registrar (for the purposes of s 79(5)) is the date the Registrar receives a copy of this order.

5. Each party is to bear their own costs of this proceeding.

The court will hear from the parties in relation to payment of the adjudicator’s fees and payment out of the moneys previously paid into court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Procon Developments (Australia) Pty Ltd v Hi-Cal Bricklaying [2025] QSC 67
PARTIES:	PROCON DEVELOPMENTS (AUSTRALIA) PTY LTD ACN 118 367 918 (Applicant) v BRETT ANTHONY DAY & EMILY HALL T/A HI-CAL BRICKLAYING ABN 44 184 287 685 (First Respondent) and *HUGO ALBERTO MEROLLA (Registered Adjudicator J15255524 under the Building Industry Fairness (Security of Payment) Act 2017)* (Second Respondent) and *THE ADJUDICATION REGISTRAR (under the Building Industry Fairness (Security of Payment) Act 2017)* (Third Respondent)
FILE NO/S:	BS 16087 of 2024
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	7 April 2025
DELIVERED AT:	Brisbane
HEARING DATE:	28 March 2025
JUDGE:	Bowskill CJ
ORDERS:	1. Declare that the adjudication decision of the second respondent, made on 22 October 2024, in respect of adjudication application number 2643815, is invalid. 2. The adjudication decision is set aside. 3. The adjudication application number 2643815, lodged on 13 September 2024 by Hi-Cal Bricklaying, is remitted to the Adjudication Registrar, to be referred to an adjudicator (not being the adjudicator who made the first decision) for a decision according to law, pursuant to s 79 of the *Building Industry Fairness (Security of Payment) Act 2017. 4. For the purposes of calculating the time in which steps are required to be taken in relation to the adjudication application, the date the application is made (for the purposes of the step required by s 79(4)) is taken to be the date of this order, and the date the application is received by the Registrar (for the purposes of s 79(5)) is the date the Registrar receives a copy of this order. 5. Each party is to bear their own costs of this proceeding.* The court will hear from the parties in relation to payment of the adjudicator’s fees and payment out of the moneys previously paid into court.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the first respondent made an adjudication application under the Building Industry Fairness (Security of Payment) Act 2017 (Qld), in relation to a payment claim under a construction contract with the applicant, and the adjudicator declared an adjudicated amount of $13,693.25 – where the applicant contends the adjudicator lacked jurisdiction to make a decision because there was no “reference date” for the payment claim – where the applicant also argues the adjudicator denied the parties procedural fairness by deciding a reference date which no party contended for, without giving the parties an opportunity to be heard – whether the decision should be set aside for jurisdictional error – if so, whether the application should be remitted to be considered according to law Building Industry Fairness (Security of Payment) Act 2017 (Qld) ss 67, 70, 75, 79, 82, 84, 95 Fernandes Constructions v Tahmoor Coal [2007] NSWSC 381, cited Ingeteam Australia Pty Ltd v Susan River Solar Pty Ltd [2024] QSC 30, applied Plaintiff S157/2022…