Tomkins Commercial & Industrial Builders Pty Ltd v York Property Holdings Pty Ltd

Tomkins Commercial & Industrial Builders Pty Ltd, the head contractor for the construction of a residential apartment tower, sought judicial review of two adjudication decisions made by an adjudicator under the Building Industry Fairness (Security of Payment) Act 2017 (Qld). The principal, York Property Holdings Pty Ltd, had refused to pay two payment claims submitted by Tomkins, leading to the disputes being referred to adjudication. Tomkins challenged the validity of the adjudicator's decisions on multiple grounds, including whether the adjudicator considered the relevant submissions and contract provisions, and whether the adjudicator breached statutory provisions by considering reasons not included in the payment schedule. The court was required to determine whether the adjudicator's decisions were affected by jurisdictional error, which would render the decisions void.

The court found that the adjudicator had indeed committed jurisdictional errors in both adjudication decisions. In the first adjudication, the adjudicator considered reasons provided by York that were not included in the payment schedule, contrary to the statutory requirement. This constituted a breach of s 88(3)(b) of the Act. Additionally, the adjudicator failed to consider Tomkins' submissions and the provisions of the contract, thereby denying Tomkins procedural fairness. The court also found that the adjudicator's method of valuing the rectification works in the second adjudication was illogical, perverse, and incoherent, leading to a jurisdictional error in the valuation of deductions for rectification.

The court declared that paragraphs [99] to [110] of the second adjudication decision, concerning the estimated cost of rectifying defective work on the building façade, were affected by jurisdictional error and were void. It severed these paragraphs from the adjudication decision, reduced the value of the deduction for the defective façade works to $nil, and increased the amount payable by York to Tomkins by $4,764,178.27 (including GST) to $6,161,488.27 (including GST). The remainder of the application was dismissed, and the court reserved the question of costs for later determination.