Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd

The case of Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd involves a dispute between the two parties over the entitlement to and recovery of progress payments for construction works. The matter was heard in the Queensland Supreme Court, where the central issues revolved around the statutory regulation of progress payments under the Building and Construction Industry Payments Act 2004 (Qld). The primary legal issues the court needed to address were whether there had been a jurisdictional error by the Adjudicator appointed under the Act, and whether the Adjudicator's decision should be declared void and set aside due to the failure to consider the parties' submissions. Additionally, the court had to determine if the statutory regime allowed for reference dates and the entitlement to progress payments to continue after the termination of the contract.

The court examined the process by which the Adjudicator made his decision and found that the Adjudicator had admitted to being fully aware of the parties' submissions but had mistakenly omitted to consider them during his deliberations. This omission was deemed to be a jurisdictional error, as it went to the root of the decision-making process. The court concluded that the Adjudicator's failure to consider the submissions constituted a jurisdictional error, leading to the decision being void and set aside. Furthermore, the court considered the question of whether the Act's provisions permitted progress payment claims and reference dates after the termination of the contract. The court found that the statutory regime did not support such claims, as the entitlement to progress payments ceased upon the termination of the contract.

The Queensland Supreme Court held that the Adjudicator's decision was flawed due to a jurisdictional error, and thus the decision was void and set aside. The court further ruled that the Building and Construction Industry Payments Act 2004 (Qld) did not provide for the continuation of progress payments or reference dates after the contract had been terminated. The court reserved the decision on the terms of the order and the allocation of costs, indicating that further submissions would be required from counsel on these matters.