Azure Project 19 Pty Ltd v 5 Point Projects Pty Ltd [2026] QSC 96

SUPREME COURT OF QUEENSLAND CITATION: Azure Project 19 Pty Ltd v 5 Point Projects Pty Ltd [2026] QSC 96 PARTIES: AZURE PROJECT 19 PTY LTD ACN 625 021 178 (first applicant) AZURE DEVELOPMENT GROUP PTY LTD ACN 600 740 163 (second applicant) v 5 POINT PROJECTS PTY LTD ACN 615 602 027 (first respondent) MR JOHN GOGGINS (second respondent) THE ADJUDICATION REGISTRAR (QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION) (third respondent) FILE NO/S: BS705 of 2026 DIVISION: Trial Division PROCEEDING: Originating Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 15 May 2026 DELIVERED AT: Brisbane HEARING DATE: 8 May 2026; further joint submissions received on 12 May 2026 JUDGE: Kelly J ORDER: 1. It is declared that the decision of the second respondent dated 4 February 2026 in Adjudication Application Number QBCC 2913921 to the extent that it included an amount for PV019 for Liquidated Damages of $110,000 was affected by jurisdictional error. 2. Pursuant to s 101(4) of the Building Industry Fairness (Security of Payment) Act 2017 (Qld), the decision of the second respondent dated 4 February 2026 in Adjudication Application Number QBCC 2913921 is declared void to the extent that it included an amount for PV019 for Liquidated Damages of $110,000. 3. Pursuant to s 101(4) of the Building Industry Fairness (Security of Payment) Act 2017 (Qld), the adjudicated -- 1 of 22 -- 2 amount of $1,731,973.75 contained in the decision of the second respondent dated 4 February 2026 in Adjudication Application Number QBCC 2913921 is reduced by $130,000 to $1,601,973.75. 4. Subject to orders 1 to 3, the decision of the second respondent dated 4 February 2026 in Adjudication Application Number QBCC 2913921 otherwise remains valid and binding on the applicants and the first respondent. 5. I will hear the parties as to costs. CATCHWORDS: CONTRACT – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – GENERALLY – where the first applicant and first respondent entered a design and construct contract for the development of a luxury residential development – where the first respondent served a claim on the first applicant claiming payment of $4,021,205.98 – where that claim was a progress claim under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) – where the superintendent certified that liquidated damages of $1,130,000 were payable by the first respondent to the first applicant – where the first applicant issued a notice of set-off certifying $48,517.87 as the amount due and payable by the first respondent – where the first respondent applied for adjudication of the payment claim pursuant to s 79 of the Act – where the second respondent, as adjudicator, determined that $1,731,973.75 was payable by the first applicant to the first respondent – where the first applicant contended the second respondent failed to consider the parties’ submissions concerning the date of, and date for, practical completion – where the first applicant contended that the second respondent failed to consider the contractual provisions relating to liquidated damages – where the first applicant contended that the second respondent failed to give adequate reasons concerning the liquidated damages issue – where the first applicant contended the second respondent failed to calculate liquidated damages and the amount of the progress payment in accordance with the contract – whether the adjudication decision was affected by jurisdictional error and void. Building and Construction Industry Security of Payment Act 1999 (NSW), s 32A Building Industry Fairness (Security of Payment) Act 2017 (Qld), ss 3, 70, 71, 72, 75, 76, 79, 84, 85, 88, 101 Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd (2020) 4 QR 410, considered -- 2 of 22 -- 3 Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225, considered Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, cited Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, considered LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321, cited Maxcon Constructions Pty Ltd v Vadasz (2018) 264 CLR 46, cited Northbuild Construction Sunshine Coast Pty Ltd v Beyfield Pty Ltd [2015] 1 Qd R 463, considered Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1, cited R v Governor of Brixton Prison; Ex parte Armah [1968] AC 192, cited R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170, cited Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340, cited York Property Holdings Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd [2026] QCA 63, cited COUNSEL: D Butler KC and L Tassell for the applicants M Ambrose KC and T Ambrose for the first respondent SOLICITORS: CDI Lawyers for the applicants Helix Legal for the first respondent An adjudication decision is sought to be declared void [1] On 25 October 2022, the first applicant (“the Principal”) and the first respondent (“the Contractor), entered a design and construct contract (“the Contract”) for the development of a luxury residential development. The Contract included clauses concerned with time, progress and liquidated damages (clause 34) and progress claims, set-offs and payment (clause 37). On 28 June 2025, the Contractor served a claim on the Principal claiming payment in the amount of $4,021,205.98. That claim was both a progress claim under clause 37.1 of the Contract and a payment claim under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (“the Act”). On 16 July 2025, the superintendent certified that liquidated damages in the amount of $1,130,000 were payable by the Contractor to the Principal. On that date, the Principal issued a notice of set-off which included the certified liquidated damages and served a payment schedule under the Act certifying $48,517.87 as the amount due and payable -- 3 of 22 -- 4 to the Contractor. On 28 August 2025, the Contractor applied for adjudication of the payment claim pursuant to s 79 of the Act. On 4 February 2026, the second respondent (“the adjudicator”) issued his adjudication which determined that $1,731,973.75 was payable by the Principal to the Contractor. [2] The applicants seek orders that the adjudication decision is void for jurisdictional error. The second applicant is the holding company of the Contractor and has provided an undertaking to pay any adjudicated amount under the Act. The statutory right to a progress payment [3] The main purpose of the Act is to help people working in the building and construction industry in being paid for the work they do.1 That purpose is achieved primarily by, inter alia, establishing a procedure for making payment claims, responding to payment claims, adjudicating disputed payment claims and recovering amounts claimed.2 [4] Chapter 3 Part 2 of the Act deals with the right to progress payments. From each reference date under the Contract, which was a construction contract, the Contractor was entitled to a progress payment if it had carried out construction work or supplied related goods and services under the Contract (s 70). The amount of the progress payment to which the Contractor was entitled fell to be calculated as follows. If the Contract provided for the matter, the amount calculated in accordance with the Contract (s 71(a)). If the Contract did not provide for the matter, the amount calculated on the basis of the value of the construction work carried out under the Contract, or the related goods and services supplied by the Contractor in accordance with the Contract (s 71(b)). The Act provides for how construction work and related goods and services carried out or supplied under a construction contract are to be valued (s 72). [5] Chapter 3 Part 3 of the Act deals with the making of, and responses to, payment claims. A claimant who was or claimed to be entitled to a progress payment might give a payment claim to the person who, under the relevant construction contract, was or might be liable to make the payment (s 75). The respondent had to respond to the payment claim by giving the claimant a payment schedule (s 76). A claimant might apply for adjudication of a payment claim if the amount stated in the payment schedule, given in response to the payment claim, was less than the amount stated in the payment claim (s 79(1)(b)). [6] The adjudication of disputed claims is the subject of Chapter 3 Part 4 of the Act. Pursuant to s 88(1) of the Act, the adjudicator was to decide the amount of the progress payment, if any, to be paid by the Principal to the Contractor, the date on which any amount was payable and the rate of interest payable on any amount. [7] The ascertainment of the amount, if any, of the progress payment to be recovered by the Contractor was committed to the jurisdiction of the adjudicator to determine under s 88 of the Act.3 The High Court has described “the task”4 of the adjudicator, as that set out as follows in s 88 of the Act: 1 The Act, s 3(1). 2 The Act, s 3(2). 3 Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340 at 360 [59]. 4 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at 9 [14] (“Probuild Constructions”). -- 4 of 22 -- 5 “88 Adjudicator’s decision (1) An adjudicator is to decide— (a) the amount of the progress payment, if any, to be paid by the respondent to the claimant (the adjudicated amount); and (b) the date on which any amount became or becomes payable; and (c) the rate of interest payable on any amount. (2) In deciding an adjudication application, the adjudicator is to consider the following matters only— (a) the provisions of this chapter and, to the extent they are relevant, the provisions of the Queensland Building and Construction Commission Act 1991, part 4A; (b) the provisions of the relevant construction contract; (c) the payment claim to which the application relates, together with all submissions, including relevant documents, that have been properly made by the claimant in support of the claim; (d) the payment schedule, if any, to which the application relates, together with all submissions, including relevant documents, that have been properly made by the respondent in support of the schedule; (e) the results of any inspection carried out by the adjudicator of any matter to which the claim relates. (3) However, the adjudicator must not consider any of the following— (a) an adjudication response, to which the adjudication application relates, that was not given to the adjudicator within the time required under section 83; (b) a reason included in an adjudication response to the adjudication application, if the reason is prohibited from being included in the response under section 82. (4) Also, the adjudicator may disregard an adjudication application or adjudication response to the extent that the submissions or accompanying documents contravene any limitations relating to submissions or accompanying documents prescribed by regulation. (5) The adjudicator’s decision must— (a) be in writing; and (b) include the reasons for the decision, unless the claimant and the respondent have both asked the adjudicator not to include the reasons in the decision. -- 5 of 22 -- 6 (6) The adjudicator must give the registrar— (a) a copy of the decision; and (b) notice of all fees and expenses paid, and to be paid, to the adjudicator for the decision. Maximum penalty—40 penalty units. (7) The adjudicator must give the registrar the information mentioned in subsection (6) at the same time the adjudicator gives a copy of the decision to the claimant and the respondent.” [8] The adjudicator was required to decide the adjudication application as quickly as possible and within a strict, onerous timeframe.5 In a limited time, the adjudicator was required to consider the identified provisions of the Act, the provisions of the contract, the payment claim (and any accompanying submissions and documentation), the payment schedule (and any accompanying submissions and documentation) and the results of any inspection carried out by the adjudicator.6 [9] In the present case, there is no issue that, within the meaning of s 70 of the Act, the Contractor was entitled to a progress payment. The payment claim was for a certain amount. The Principal responded to the payment claim with a payment schedule certifying an amount payable of $48,517.87. As the amount stated in the payment schedule given in response to the payment claim was less than the amount stated in the payment claim, the Contractor was entitled to apply for adjudication of the payment claim. There is no issue that the adjudicator was properly seized of jurisdiction to determine the amount, if any, of the progress payment. The Contract, the adjudication and the adjudicator’s decision [10] The expression “WUC” was a shorthand reference to “work under the contract”. Clause 37.1 dealt with progress claims and provided that the Contractor was to claim payment progressively in accordance with item 33, while WUC was being carried out prior to practical completion, at practical completion and at the final payment claim. Item 33 provided that the times for progress claims were the 28th day of each month for WUC done to the 28th day of that month until the date of practical completion and then on the date of practical completion and on the date of issuing a final payment claim. Further, clause 37.1 provided that the time prescribed for a progress claim was also the “reference date” for the purposes of the Act. [11] Clause 34.7 dealt with liquidated damages and clause 37.7 dealt with set-off. Those clauses provided as follows: (a) Clause 34.7: “34.7 Liquidated Damages If the WUC does not reach practical completion by the date for practical completion, the Superintendent shall certify, as due and payable to the Principal, liquidated damages in Item 29 for every day after the date for practical completion to and including the earliest of the date of practical 5 The Act, ss 84–85. 6 Probuild Constructions at 17 [41]. -- 6 of 22 -- 7 completion or termination of the Contract or the Principal taking WUC out of the hands of the Contractor. At any time after the date for practical completion, the Superintendent may issue a written notice to the Principal and the Contractor certifying the amount of liquidated damages accrued in accordance with this subclause 34.7 as at that date. The Principal shall be entitled to recover the amount certified from the Contractor as a debt due and payable from the Contractor to the Principal.” (b) According to item 29, the liquidated damages rate was $10,000 per day (c) Clause 37.7: “37.7 Set off Without limiting any other rights of the Principal in relation to any loss, cost, damage or other amount (liquidated or otherwise) which: (a) the Contractor is liable to pay to the Principal under the Contract; or (b) the Principal claims it has suffered or is likely to suffer as a result of an act or omission by the Contractor arising out of or in connection with the Contract or any other agreement (whether in relation to the Project or otherwise), the Principal may at any time after giving written notice to the Contractor: (c) deduct from or set off such losses, costs, damages or other amount against any amounts due to the Contractor under the Contract or otherwise at law in respect of the Works or under any other agreement (whether in relation to this Project or otherwise); (d) have recourse to any security provided by the Contractor under the Contract or provided by the Contractor under any other agreement (whether in relation to this Project or otherwise). The provisions of this subclause 37.7 survive the termination or expiration of the Contract.” [12] The adjudication application was served on 28 August 2025. The Principal’s adjudication response was provided on 15 October 2025. Between November 2025 and January 2026, the Contractor and the Principal provided further submissions to the adjudicator. By the end of this process, the adjudicator had been provided with material exceeding 21000 pages. [13] The written submissions provided by the parties to the adjudicator included submissions as to: (a) the “date for practical completion”; (b) the “date of practical completion”; and -- 7 of 22 -- 8 (c) the resulting calculation of the amount of liquidated damages payable by the Contractor. [14] The Contractor’s primary submission to the adjudicator was that the date for practical completion was 16 June 2025. Alternatively, it submitted that time was at large. The Contractor then submitted that practical completion had been achieved either on 25 July 2025, 1 August 2025, 4 August 2025 or 7 August 2025. [15] The Principal submitted that the date for practical completion was 25 February 2025 and that practical completion had not been achieved as at 16 July 2025 or by 7 August 2025, the date on which the Principal terminated the Contract. The Principal contended that $1,130,000 was due and payable by the Contractor to the Principal as liquidated damages pursuant to clause 34. [16] The Contractor accepts that, before the adjudicator, a “critical issue that was in dispute” was the date for practical completion. The Contractor’s submissions before the adjudicator included this paragraph: “Entitlement 708. Under the Contract, the Respondent is only entitled to deduct liquidated damages if the Claimant has failed to achieve practical completion by the date for practical completion. Importantly, the Contract also provides for a four-week liquidated damages free period, such that no entitlement to deduct arises until the expiry of that period. There is no dispute between the parties that the liquidated damages free period applies to exclude the Claimant's liability to any liquidated damages for 4 weeks after the date for practical completion – the dispute between the parties is what the extended date for practical completion is under the Contract.” [17] As to the issue concerning the date for practical completion, the following paragraphs appeared in the Contractor’s written submissions before the adjudicator: “711. The Claimant maintains that on a reasonable and proper assessment: (a) the date for practical completion should be extended to 16 June 2025 and therefore liquidated damages are not able to be deducted before 14 July 2025 (being four weeks thereafter); and (b) that practical completion was in fact achieved on 25 July 2025. 712. The result of the above is that the Respondent's entitlement to deduct liquidated damages from the Payment Claim is limited to $110,000. … 754. For the above reasons, the consistent and fair conclusion is that either: -- 8 of 22 -- 9 (a) the Date for Practical Completion was extended to 16 June 2025 and taking into account the four week liquidated damages free period, liquidated damages are properly calculated at no more than $110,000; or (b) in the alternative, time was set at large by the Respondent's own prevention conduct and on that basis, the Respondent's claimed set-off of $1,130,000 for liquidated damages must be rejected in full; or (c) further in the alternative, the Adjudicator is to step into the shoes of the Superintendent and exercise the direction in clause 34.5 to extend time to 16 June 2025.” [18] The Contractor’s alternative submissions that time was set at large was, at least implicitly, rejected by the adjudicator. No party made any complaint about the adjudicator’s treatment of that alternative submission. In terms of the scope of the remaining dispute between the parties as to the date for practical completion, the Contractor contended for 16 June 2025 and the Principal contended for 25 February 2025. I reject the Principal’s submission before this Court which was to the effect that 16 June 2025 and 25 February 2025 represented only some of the dates put forward before the adjudicator in respect of the date for practical completion. I find that no dates other than 16 June 2025 and 25 February 2025 were advanced before the adjudicator as to the date for practical completion. [19] The adjudication’s reasons dealt with the issue of liquidated damages in a separate part headed “0.39 Set-off - Liquidated Damages”. That part may be set out as follows: “402. In the Payment Schedule, the Respondent gives the following reasons for applying a ‘set off’ of (minus) $1,130,000.00 for “Liquidated Damages”: On 16 July 2025, the Superintendent issued a notice to the Contractor certifying liquidated damages payable by the Contractor to the Principal in the amount of One Million One Hundred and Thirty Thousand Dollars ($1,130,000). The Principal is therefore entitled to recover this amount from the Claimant as a debt due and payable pursuant to clause 34.7 of the Contract. 403. In the Application, the Claimant concedes an amount of (minus) $110,000.00 ($1,130,000.00 less $1,020,000.00) for “Liquidated Damages”. 404. Both Parties provide me with extensive submissions in this regard, including the contractual bases of the arguments, the specific circumstances leading to the application of “Liquidated Damages”, detailed rebuttal of the other party’s arguments, and the Claimant’s alternative argument that time was ‘set at large’ 405. The Claimant concludes that either: (a) Date for Practical Completion was extended to 16 June 2025 and taking into account the four week liquidated -- 9 of 22 -- 10 damages free period, liquidated damages are properly calculated at no more than $110,000; or (b) in the alternative, time was set at large by the Respondent's own prevention conduct and on that basis, the Respondent's claimed set-off of $1,130,000 for liquidated damages must be rejected in full; or (c) further in the alternative, the Adjudicator is to step into the shoes of the Superintendent and exercise the direction in clause 34.5 to extend time to 16 June 2025. 406. The Respondent relevantly concludes that: i. the revised date for practical completion is 25 February 2025; ii. the WUC had not reached practical completion as at 7 August 2025; and iii. time was not set at large. 407. The Claimant’s argument is also premised on having reached practical completion on 25 July 2025, alternatively on 01 August 2025. 408. As above, the Respondent’s position is that, by 07 August 2025, practical completion had not been reached. 409. The date on which practical completion was (or was not) reached is immaterial to my considerations because both Parties contend dates which are after the Reference Date. 410. The threshold issue is for me to satisfy myself, on balance, that "[t]he revised date for practical completion under the Contract is Tuesday 25 February 2025”, being the date on which the Respondent bases the "Liquidated Damages”. 411. In this regard, the Parties rely on different conflicting expert reports, the Respondent noting that its expert suggests that “the revised date for practical completion was 14 February 2025, whereas the Claimant’s expert concludes that “the revised date for practical completion (was) 16 June 2025”. 412. Further, the Claimant’s expert concluded that “the Respondent caused delays to the Project which continued from 21 May 2025 until 16 June 2025. 413. The Respondent submits that “little weight ought to be given to the report, as Mr Such(‘s) (the Claimant’s expert) delay analysis is erroneous, inaccurate and unreliable”. This is based on the Respondent’s expert’s opinion that the Claimant’s expert “has failed to update his delay analysis methodology and failed to properly consider other causes of delay In the completion of the works”. -- 10 of 22 -- 11 414. While I’m not suggesting that either (or parts of) these expert’s reports fall under the prohibition in section 82(4) of the Act, I am mindful that the Respondent’s expert could comment of the Claimant’s expert report, without reciprocation. 415. On careful consideration of the Parties’ extensive submissions, on balance I am not satisfied that the date for practical completion was 25 February 2025. Nor that it was 16 June 2025. Nor do I make any decision on what that date was. 416. I am also influenced by the delays in relation to “CV061” and “PV019” 417. Nevertheless, to fulfil my obligation under section 88(1)(a) of the Act, I have applied the ‘set off’ of (minus) $110,000.00 for “Liquidated Damages” (as admitted by the Claimant) in my valuation…” The requirement to establish jurisdictional error [20] The only basis on which the adjudicator’s decision may be challenged is by invoking this Court’s supervisory jurisdiction on the basis of jurisdictional error.7 In Ceerose Pty Ltd v A-Civil Aust Pty Ltd,8 Payne JA, with whom Ward ACJ and Basten AJA agreed, provided the following succinct description of jurisdictional error: “Jurisdictional error has been described as ‘a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision- maker purported to make it’ … Put simply, it involves a decision-maker exceeding the authority to decide conferred on them, or failing to exercise that authority when required to do so.” [21] In Hossain v Minister for Immigration and Border Protection,9 the plurality10 observed that the distinction between jurisdictional errors and non-jurisdictional errors is ultimately “a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised”. In the context of jurisdictional error, it has been observed that “there are mistakes and mistakes”.11 Lord Reid once observed of a Magistrate, “If he has jurisdiction to go right he has jurisdiction to go wrong”.12 An adjudicator, properly seized of jurisdiction under the Act, will have been authorised to make some errors or mistakes. 7 York Property Holdings Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd [2026] QCA 63 at [17]. 8 (2023) 112 NSWLR 225 at 235–6 [38]. 9 (2018) 264 CLR 123 at 133 [25] (“LPDT”). 10 Kiefel CJ, Gageler and Keane JJ. 11 Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, cited in R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 268; Maxcon Constructions Pty Ltd v Vadasz (2018) 264 CLR 46 at 59 [35]. 12 R v Governor of Brixton Prison; Ex parte Armah [1968] AC 192 at 234. -- 11 of 22 -- 12 [22] In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,13 the High Court, whilst recognising that the categories of jurisdictional error are not closed,14 outlined the following approach to the identification of jurisdictional error: “A statute which contains an express or implied condition of a conferral of decision-making authority is not always to be interpreted as denying legal force and effect to every decision that might be made in breach of that condition. Only by construing the statute so as to understand the limits of the statutory conferral of decision‑making authority is it possible to determine, first, whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decision‑making authority) and, second, whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force). Determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged in the statutory context within which the decision has been made. Given the broad range of decisions in which errors might be made, the large variety of statutory schemes in which those decisions might be made, and the range of circumstances which may attend the making of any particular decision, it is impossible to divine a rigid classification of the errors that constitute jurisdictional errors. There are no bright lines to be drawn – ‘[t]he nature of the error has to be worked out in each case concerning a specific decision under a particular statute’.” [23] A statute which contains an express or implied condition to be observed in a decision- making process is ordinarily to be interpreted as incorporating a “threshold of materiality”. Where it is alleged that a decision is affected by jurisdictional error constituted by a breach of an express or implied condition of a conferral of decision- making authority by a statute which incorporates a requirement of materiality, two questions arise: has an error occurred and, if so, was that error material.15 The High Court in LPDT,16 said that “in most cases” an error will only be jurisdictional if it was material to the decision that was made in fact “in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred”. The High Court further explained this point as follows:17 “The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.” 13 (2024) 280 CLR 321 at [4]–[5]. 14 Ibid at [3]. 15 Ibid at [9]. 16 Ibid at [7]. 17 Ibid at [14]. -- 12 of 22 -- 13 The alleged jurisdictional errors [24] The Principal submits that the adjudication decision is affected by the following jurisdictional errors: (a) In deciding the claim for liquidated damages, the adjudicator failed to consider the submissions of the Principal and the Contractor in relation to the “date for practical completion” and the “date of practical completion” and, thereby, failed to carry out the statutory task required by s 88(2) of the Act (“the first ground”); (b) The adjudicator failed to consider the terms of the Contract relating to liquidated damages, and, thereby, failed to carry out the statutory task required by s 88(2) of the Act (“the second ground”); (c) The adjudicator failed to give adequate reasons in relation to the liquidated damages issue and, thereby, failed to carry out the statutory task required by s. 88(5) of the Act (“the third ground”); (d) The adjudicator failed to calculate liquidated damages in accordance with the Contract and the amount of the progress payment in accordance with the Contract (s 71(a)), and, thereby, failed to carry out the statutory task required by s 88(1) (“the fourth ground”). Jurisdictional error established [25] As to the first ground, the duty on the adjudicator was to consider a submission. There was no duty on the adjudicator to deal with a submission correctly, whether in law or in fact.18 It was for the Principal to establish that the adjudicator had not engaged in a consideration of what was required to be considered.19 The Principal had to establish the basis on which it could be said that “consideration” did not occur. Even in a case where the reasons for a decision fail to identify or refer to a particular claim or response, that does not of itself demonstrate that the adjudicator failed to consider the claim or response.20 This was not a case where the adjudicator’s reasons failed to identify or refer to the submissions in relation to the “date for practical completion” and the “date of practical completion”. Rather, it is apparent on the face of the adjudication decision that the adjudicator considered the submissions provided by the parties. The reasons, on their face, reveal an awareness of the submissions having been made, an attempt to distil them and include an express statement that the adjudicator had considered them. [26] The Principal’s submissions in relation to the first ground mischaracterised the statutory task entrusted to the adjudicator. The Principal submitted in terms that “[t]o carry out the statutory task, the [a]djudicator was required to reach a decision in relation to the date for practical completion and the date of practical completion”. That submission was preceded by an earlier submission to the effect that the parties’ submissions before the adjudicator had proceeded on a “joint footing” that the adjudicator had to “determine” the dates for and of practical completion. These submissions implicitly suggested that the statutory task entrusted to the adjudicator was to make findings as to the dates for and of practical completion. There was no such statutory obligation. In deciding the adjudication application, the adjudicator was required to decide the amount of the progress payment, the date on which any amount became payable and 18 Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225 at [66] (“Ceerose”). 19 Ibid at [61]. 20 Ibid at [63]–[69]. -- 13 of 22 -- 14 the rate of interest. In deciding those matters, the adjudicator was required to “consider” the parties’ submissions. There was no statutory obligation upon him to make findings about matters canvassed in the submissions. Whether any findings were warranted, in the sense of being able to be supported by the material, was a factual, merits inquiry plainly within the power of the adjudicator. I reject the submission that the adjudicator failed to consider the submissions put by the Principal and the Contractor. The first ground fails. [27] As to the second ground, the Principal contends that the adjudicator failed to consider the terms of the Contract relating to liquidated damages, and, thereby, failed to carry out the statutory task required by s 88(2) of the Act. In relation to the second ground, the “mental processes of the adjudicator”,21 are sufficiently revealed by paragraph 409 of his reasons where he relevantly said that the date on which practical completion was reached was “immaterial to my considerations” because each party had contended for a date which was after the reference date. The adjudicator apparently formed the view that it was immaterial for him to consider the date of practical completion in relation to the liquidated damages claim because each party contended for a date which was after the reference date. No party had submitted to the adjudicator that the reference date had any relevance to the determination of the date of practical completion or the availability, or calculation, of liquidated damages under the Contract. No party appears to have been heard about the relevance of the reference date to these matters. [28] In Northbuild Construction Sunshine Coast Pty Ltd v Beyfield Pty Ltd,22 McMurdo J made these observations: “To determine an application, an adjudicator must identify the relevant terms of the contract upon which the claim is made and then apply the facts, as he or she finds them to be, to those terms upon their proper interpretation. The identification of the terms and the interpretation of those terms are thereby questions which the adjudicator must answer in the exercise of his jurisdiction. It follows that an error in the identification of the terms or in their interpretation will not be a jurisdictional error… However, where it appears that an adjudicator is not meaning to apply the contract, as he or she interprets it, but is instead allowing the claim upon some other basis, the position is different, because the adjudicator is thereby misunderstanding the scope of the adjudicator’s jurisdiction. An example is the allowance for termination costs in BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd, which Applegarth J held was the result of a jurisdictional error, a conclusion which the parties accepted on the arguing of the appeal. The error as to termination costs in that case has some resemblance to the error about delay costs in the present case. That contract was terminated with effect after the reference date. And the entitlement to be paid termination costs depended upon the delivery of a claim, after termination, under a certain clause of that contract. The adjudicator there accepted an argument that the claimant was entitled to these costs because they were incurred before the reference date. The claimant had advanced its 21 Ceerose at [62]. 22 [2015] 1 Qd R 463 at [29]–[30]. -- 14 of 22 -- 15 case in reliance upon a certain provision of the contract, which in truth did not provide a basis for a contractual entitlement as at the reference date, at least because no notice claiming those costs had been made under that clause by the reference date. Applegarth J held that the adjudicator’s reasons did not identify any source of contractual entitlement, other than the clause upon which the claimant relied and it was not to the point that the claimant submitted to the court that it could have advanced its claim upon some other provision of the contract which was not considered by the adjudicator. Applegarth J concluded that the adjudicator there had not interpreted the contract and that the adjudicator’s reasons did not suggest that he regarded the entitlement as one sourced in the provision upon which the claimant then relied. Instead, his Honour said, the adjudicator’s reasons indicated ‘that he concluded that there was an entitlement simply because the costs had been incurred before the reference date’. Therefore that adjudication did not involve a purported application of the contract.” [29] It can be observed that, in his reasons, the adjudicator noted that the Principal was claiming to be entitled to recover the amount of the certified liquidated damages as a debt due and payable pursuant to clause 34.7 of the Contract. Although the adjudicator referred to that clause, I am satisfied that he did not “consider” the clause. The adjudicator appears to have relied upon “the reference date” as a basis for classifying the date of practical completion as “immaterial” to the assessment of a claim for liquidated damages. However, the reasons do not suggest that the “immateriality” of the date of practical completion by reason of the timing of the reference date, was sourced in the adjudicator’s interpretation of the contractual provision upon which the Principal relied to claim liquidated damages. Rather, the reasons indicate that, in concluding that the date of practical completion was immaterial, the adjudicator was not meaning to apply the Contract as he interpreted it but was rather deciding the claim on another basis involving unexplained significance being attributed to the reference date. That conclusion may confidently be inferred from these matters. Clause 34.7 made no reference to the reference date. The parties’ submissions on liquidated damages made no reference to the reference date. The adjudicator’s conclusion that the date of practical completion was immaterial because of the timing of the reference date, meant that an important integer of the calculation of liquidated damages under clause 34.7, the date of practical completion, was missing. Despite that missing integer, the adjudicator went on to consider whether he was satisfied of the date for practical completion as if liquidated damages were otherwise available in circumstances where the date of practical completion was being regarded as immaterial. I find that this part of the adjudication, which relied upon “the reference date” as a basis for classifying the date of practical completion as “immaterial”, involved error as the adjudicator failed to consider the provisions of the Contract. [30] The question then is whether that error was material. The Contractor submitted that the error was not material. It made an oral submission in these terms: “It doesn’t go anywhere. Even if your Honour finds it’s an error, in practical terms, it’s not material, it does not affect the outcome of the decision, because the outcome of the decision, with respect to liquidated damages, is determined by his finding in paragraph 415.” [31] The “finding in paragraph 415” was as follows: -- 15 of 22 -- 16 “On careful consideration of the Parties’ extensive submissions, on balance I am not satisfied that the date for practical completion was 25 February 2025. Nor that it was 16 June 2025. Nor do I make any decision on what that date was.” [32] I interpret that finding as meaning that the adjudicator was not satisfied on the material that the date for practical completion was either 25 February 2025 or 16 June 2025. I accept the Contractor’s submission that, on the facts, the adjudicator was not satisfied as to the date for practical completion as contended for by the Contractor or the Principal. [33] Ultimately, the adjudicator was prepared to value the liquidated damages claim by reference to what he styled as a concession or admission made by the Contractor. In this respect, it is necessary to have regard to paragraph 417 of the reasons which states: “Nevertheless, to fulfil my obligation under section 88(1)(a) of the Act, I have applied the ‘set off’ of (minus) $110,000.00 for “Liquidated Damages” (as admitted by the Claimant) in my valuation...” [34] Hence, in purporting to decide the amount of the progress payment under s 88(1)(a) of the Act, the adjudicator applied a set-off for liquidated damages of $110, 000 “as admitted” by the Contractor. The reasons at paragraph 403 had earlier referred to the Contractor having made a concession as to this amount. Before this Court, the Principal initially submitted that the Contractor had made a concession before the adjudicator as to the $110,000 but, in its reply submissions, made a contrary submission to the effect that there had in fact been no concession by the Contractor. None of that really matters. I accept that it was open to the adjudicator to form his own view about whether the Contractor’s submissions included a relevant concession. It may be accepted that it was within the adjudicator’s power to interpret paragraphs 711, 712 and 754 of the Contractor’s written submissions before him as containing a relevant concession. [35] If a concession were made as to the $110,000, as the adjudicator found, the concession involved several discrete parts. The first part involved a concession as to the date for practical completion being 16 June 2025. The calculation of the $110,000 then involved using that base date of 16 June 2025 and adopting a further concession or assumption that the date of practical completion was 25 July 2025. Had the adjudicator’s decision not been affected by the error, the date of practical completion would not have been regarded as immaterial and it would have been necessary for the adjudicator to consider whether the material before him established to his satisfaction a date of practical completion. In that regard, the Contractor contended that practical completion had been achieved on 25 July 2025, 1 August 2025, 4 August 2025 or 7 August 2025. The Principal contended that practical completion had not been achieved as at 7 August 2025. Having regard to what the adjudicator described as the parties’ extensive submissions including “as to the contractual bases of the arguments, the specific circumstances leading to the application of liquidated damages and their detailed rebuttal of the other party’s arguments”, the adjudicator may well have reached a decision as to liquidated damages by adopting what he perceived to be a concession in relation to the date for practical completion but relying upon his own finding in relation to the date of practical completion. I find that the decision that was in fact made could realistically have been different had there been no error, the possibility of a different outcome on liquidated damages being more than fanciful. The second ground is established. -- 16 of 22 -- 17 [36] As to the third ground, in Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd,23 Bond J provided the following observations relevant to the circumstances in which a deficiency in reasons might justify a conclusion of jurisdictional error: “… the valid exercise of an adjudicator’s jurisdiction is conditioned on the inclusion in the decision of written reasons for the decision in compliance with s 88(5)(b). Failure to meet this condition would amount to jurisdictional error by the adjudicator and would result in invalidity... Difficulty in the application of this proposition usually arises where written reasons have been provided, but they are said to be so deficient as not to comply with the legislative requirement. Circumstances in which courts have suggested that an identified deficiency of reasons may justify a conclusion of jurisdictional error include: (a) where the reasons do not reflect a genuine consideration of the matters identified in s 88(2); (b) where the adjudicator has not made the critical findings in the way contemplated by the Payment Act; (c) where findings or conclusions have no basis, are bare conclusions and do not reveal due consideration such that ‘… being insufficiently supported by reason, they appear to be an improper exercise of the power conferred or arbitrary or there was no evidence or other material sufficient to justify the making of the decision or the decision was so unreasonable that no reasonable person would have so exercised the power’; (d) where one party’s evidence is rejected for no reason or on no other ground than a bare conclusion that one party’s evidence is preferred over another; (e) where the reasons reveal no intellectual justification for the decision that was made; (f) where the reasons do not reveal any foundation or logical basis for the decision, so it is appropriate to conclude there has been a failure to exercise jurisdiction. … The true position is that the various ways in which courts have suggested that a deficiency in reasons might justify a conclusion of jurisdictional error should be regarded as illustrating but not codifying the manner by which such error may be discerned in any particular case. … the dividing line here is between a deficiency of reasons which demonstrates that the adjudicator has not discharged his or her task as contemplated by s 88, and that which does not go so far.” [37] As I have indicated, the adjudicator apparently concluded that it was immaterial for him to consider the date of practical completion in relation to the liquidated damages 23 (2020) 4 QR 410 at [37]–[40] (“Acciona”). -- 17 of 22 -- 18 claim because each party contended for a date which was after the reference date. The reasons do not explain the basis for that conclusion. The basis is not obvious in circumstances where clause 34.7 made no reference to the reference date and no party had submitted to the adjudicator that the reference date had any relevance to the determination of the date of practical completion or the availability, or calculation, of liquidated damages under the Contract. It may also be observed that the adjudicator’s adoption of the Contractor’s concession was inconsistent with the notion that the date of practical completion was immaterial if it were a date after the reference date. The set-off which was allowed, being the amount of $110,000 the subject of the concession, was calculated by reference to a date of practical completion which post-dated the reference date. In my consideration, the reasons reveal no intellectual justification or any foundation or logical basis for the decision to treat the date of practical completion as “immaterial”. I am satisfied that the deficiency in the reasons further demonstrates that the adjudicator has not discharged his task as contemplated by s 88 of the Act and that, in concluding that the date of practical completion was immaterial, he was not meaning to apply the Contract as he interpreted it but was rather deciding the claim on another basis involving unexplained significance being attributed to the reference date. For the reasons I have already provided in relation to the second ground, I am satisfied that the error identified by the third ground was material. The third ground is established. [38] The focus of the fourth ground was on the adjudicator’s function under s 88(1) of the Act. Pursuant to that section, the adjudicator was required to decide the amount of the progress payment. Section 71(a) of the Act provided that the amount of a progress payment to which a person was entitled under a construction contract was, if the contract provided for the matter, the amount calculated in accordance with the contract. The Principal submitted that clause 34.7 provided for the amount of liquidated damages to which the Principal was entitled which was an amount to be calculated in accordance with the Contract for the purposes of s 71(a) of the Act. It was submitted that the adjudicator was under a duty to decide both a date for, and a date of, practical completion24 and had, in terms, effectively refused or declined to decide those dates. [39] The fourth ground rested upon an asserted error in failing to decide each of the dates for and of practical completion. I accept that, on a fair reading of the reasons, the adjudicator refused to decide the date of practical completion because he erroneously regarded that date as being immaterial if it post-dated the reference date. The Principal submitted that, properly construed, paragraph 415 of the reasons revealed error on the part of the adjudicator constituted by a refusal, or deliberate failure, to decide the date for practical completion. The submission rested upon the contention that the parties had identified dates for practical completion, other than 25 February 2025 or 16 June 2025. The Principal made an oral submission that having regard to paragraph 415 of the reasons, the adjudicator had “… only ruled out two of the dates that were before him. That wasn’t the entire universe of the dates that were put before him for practical completion”.25 I reject the Principal’s submission as to the proper interpretation of paragraph 415. The adjudicator was confronted with submissions which identified two dates for practical completion, 25 February 2025, as contended for by the Principal, or 16 June 2025, as contended for by the Contractor. In paragraph 415, the adjudicator made it clear that, after considering the submissions, he was not satisfied that the date 24 T 1-12.04. 25 T 1-8.22-26. -- 18 of 22 -- 19 for practical completion was either 25 February 2025 or 16 June 2025. The determination that he was not satisfied on the material that either date propounded by the parties had been established, was a decision that was within the adjudicator’s power. [40] In the last sentence of paragraph 415, with reference to the date for practical completion, the adjudicator said, “Nor do I make any decision on what that date was”. I accept the Contractor’s submission that the adjudicator committed no error by failing to conduct an investigation to ascertain a different date for practical completion to the dates identified by the parties. The dispute referred for adjudication was the dispute between the maker of the payment claim and the recipient of that claim. The adjudicator was not required to address “the true merits of the claim” outside the limited issues presented by the parties for determination.26 I do not accept that paragraph 415 reveals any error. The adjudicator was not satisfied that the date for practical completion was 25 February 2025, as propounded by the Principal, or 16 June 2025, as propounded by the Contractor. He was not obliged to make any finding as to another date for practical completion. The fourth ground fails. Severance [41] Section 101(4) of the Act relevantly provides: “If, in any proceedings before a court in relation to any matter arising under a construction contract, the court finds that only a part of an adjudicator’s decision under this chapter is affected by jurisdictional error, the court may– (a) identify the part affected by the error; and (b) allow the part of the decision not affected by the error to remain binding on the parties to the proceeding.” [42] In Acciona,27 Bond J relevantly said: “The Court is thereby given power to ‘allow the part of the decision not affected by the error to remain binding on the parties to the proceeding’. The means by which it may achieve that outcome are not specified. But the High Court has recognised the long-standing principle that a grant of power impliedly carries with it everything necessary for its exercise. Moreover, the term ‘necessary’ in connection with the implied power is to be understood as identifying a power to make orders which are reasonably required or legally necessary to the accomplishment of what is specifically provided to be done by the statute. In this context, ‘necessary’ does not have the meaning of ‘essential’; rather it is to be ‘subjected to the touchstone of reasonableness’. When assessing the touchstone of reasonableness in relation to the power conferred on the Court by s 101(4), some further understanding of the statutory background is necessary. Section 101(4) is not materially different in form to its statutory predecessor, s 100(4) of the BCIPA. The power there expressed was first introduced to the BCIPA in 2014. Prior to such a power being conferred on the Court, the 26 Ceerose at [77]–[84]. 27 (2020) 4 QR 410 at [82]–[85]. -- 19 of 22 -- 20 identification of jurisdictional error resulted in the invalidity of the entire decision. The conferral of power on the Court was a response by the legislature to the perceived injustice of that outcome. In my view, s 101(4) should be construed beneficially to ensure that the mischief to which it was directed is remedied. The result of the foregoing is that s 101(4) should be construed as impliedly conferring on the Court the power to make such orders as are reasonably required or legally necessary to achieve the outcome of allowing the part of an adjudicator’s decision not affected by jurisdictional error to remain binding on the parties to the proceeding. The remedial nature of the power suggests that a beneficial approach should be taken to the determination of what is reasonably required or legally necessary in order to allow a relevant part of an adjudicator’s decision to remain binding. In this context, the decision referred to in s 101(4) is the adjudicator’s decision referred to in s 88. It is the decision of the amount of the progress payment, if any, to be paid by a respondent to a claimant, the date upon which it becomes due and payable, and the rate of interest: s 88(1). Section 101(4) evidently contemplates that the decision as to the amount of a progress payment under a construction contract may have been comprised of decisions as to the merit of a number of component parts. It is obvious why that may be so: the determination of the amount of a progress claim under a construction contract often involves making decisions about a multiplicity of claims, both positive and negative. And in working out what are the component parts in any particular case, it is notable that the adjudicator’s decision includes the reasons for the decision: s 88(5).” [43] Section 32A of the Building and Construction Industry Security of Payment Act 1999 (NSW) is a similar provision to s 101(4) of the Act.28 The purpose of s 32A was to address outcomes which unfairly and unnecessarily deprived a contractor of an interim payment with adverse consequences for its cash flow.29 The New South Wales Court of Appeal has agreed with Bond J that the decision referred to in s 101(4) of the Act is the adjudicator’s decision referred to in s 88 of the Act.30 In making orders under s 101(4), the focus must be upon the three matters referred to in s 88(1) namely “the amount of the progress payment (if any) to be paid by the respondent to the claimant, the date on which such amount becomes payable and the rate of interest payable on any such amount.”31 The New South Wales Court of Appeal has countenanced an approach to the application of s 32A which, in relation to the part of the decision affected by error, focuses upon “the amount in issue”32 or the “ambit of the dispute.”33 [44] In considering the order which is reasonably required or legally necessary to achieve the outcome of allowing part of the adjudicator’s decision not affected by jurisdictional 28 Ceerose at [111]. 29 Second Reading Speech, Building and Construction Industry Security of Payment Amendment Bill 2018, p 62. 30 Ceerose at [111]. 31 Ibid at [95]. 32 Ibid [92]. 33 Ibid [97]. -- 20 of 22 -- 21 error to remain binding on the parties, it is appropriate to have regard to the main purpose of the Act, the remedial nature of s 101(4) and why the particular errors as found were considered to pass the threshold of materiality. [45] In the present case, it was common ground that the asserted errors in the adjudicator’s decision were confined to one part of the determination, that involving the amount of any set-off for liquidated damages. The adjudicator acted within its power and committed no relevant error by determining that he was not satisfied on the material as to the date for practical completion. In fixing upon an amount for liquidated damages, he acted upon a concession which identified the date for practical completion as 16 June 2025. Again, he made no error in acting upon that aspect of the concession. The errors found passed the materiality threshold because, had the adjudicator considered the provisions of the Contract, it was not fanciful to suggest that he could have decided upon a date of practical completion different from the date of practical completion which formed the basis of the calculation of the amount of $110,000. For the purposes of s 101(4) of the Act, by reason of the adjudicator having found that the date for practical completion was not established by the material and being prepared to act on the basis of a conceded date for practical completion, and having regard to the various dates of practical completion submitted by the parties before the adjudicator, the scope of the dispute as to liquidated damages is reasonably identified as whether the amount of liquidated damages should have been $110,000 as assessed or $240,000, the amount calculated from the conceded date for practical completion to the date of termination of the Contract.34 An order which would reduce the adjudicated amount by an amount reflecting the full amount of the set-off claimed by the Principal, based upon its asserted date for practical completion of 25 February 2025, is not reasonably required and would be relevantly unfair, given that the adjudicator found, on the basis of the material, as he was entitled to find, that the asserted date was not established to his satisfaction. In the circumstances, it is appropriate to exercise the discretion under s 101(4) of the Act to make orders which identify that the adjudicated amount for PV019 for Liquidated Damages of $110,000 was affected by jurisdictional error and reduce the adjudicated amount in favour of the Contractor by the sum of $130,000, representing the difference between $240,000 and $110,000. Orders [46] The orders I make are as follows: 1. It is declared that the decision of the second respondent dated 4 February 2026 in Adjudication Application Number QBCC 2913921 to the extent that it included an amount for PV019 for Liquidated Damages of $110,000 was affected by jurisdictional error. 2. Pursuant to s 101(4) of the Building Industry Fairness (Security of Payment) Act 2017 (Qld), the decision of the second respondent dated 4 February 2026 in Adjudication Application Number QBCC 2913921 is declared void to the extent that it included an amount for PV019 for Liquidated Damages of $110,000. 3. Pursuant to s 101(4) of the Building Industry Fairness (Security of Payment) Act 2017 (Qld), the adjudicated amount of $1,731,973.75 contained in the decision of 34 Pursuant to clause 34.7, liquidated damages were payable up to the earliest of the date of practical completion or termination of the Contract. -- 21 of 22 -- 22 the second respondent dated 4 February 2026 in Adjudication Application Number QBCC 2913921 is reduced by $130,000 to $1,601,973.75. 4. Subject to orders 1 to 3, the decision of the second respondent dated 4 February 2026 in Adjudication Application Number QBCC 2913921 otherwise remains valid and binding on the applicants and the first respondent. 5. I will hear the parties as to costs. -- 22 of 22 --