Andrew Kelly

Importance of proper service under Queensland’s Security of Payment Legislation

Andrew Kelly

9 September, 2019

Security of payment

We recently acted for the successful party, SHA Premier Constructions Pty Ltd, in the Queensland Court of Appeal proceeding Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd & Anor [2019] QCA 177.

The issue was whether the appellant served its adjudication applications in accordance with section 21(5) of the Building and Construction Industry Payments Act 2004 (Qld).  The Court of Appeal upheld the decision of the primary judge that the appellant failed to serve the adjudication application in the approved form on the respondent “as soon as possible”.  The appeal was dismissed with costs.

This seminal decision reiterates the importance of proper service under the Security of Payments regime.  Claimants must ensure that adjudication applications are in the approved form and served on the respondent as soon as possible after it is lodged with the QBCC.  Failing to comply with these requirements will preclude an adjudicator from having jurisdiction to determine the adjudication application.

Importantly, the Court of Appeal’s decision will apply to adjudication applications made under the Building Industry Fairness Act (Security of Payment) Act 2017 (Qld) because section 79(3) is similarly silent as to a time limit for service.

Andrew Kelly | Partner | +61 7 3338 7550 |

Sam Lenz | Paralegal/Law Clerk | +61 7 3338 7492 |