Adjudication in QLD: The Definitive Guide to the BIF Act
- John Merlo
- Apr 20
- 67 min read
Last reviewed: 20 April 2026
Jurisdiction: Queensland, Australia
Important: This guide provides general information only and is not legal advice. Legislative references in this guide are to the Building Industry Fairness (Security of Payment) Act 2017 (Qld) unless otherwise stated. Because QBCC forms, registry practices, and case law can change, critical steps — especially service, time limits, approved forms, and enforcement — should always be checked against the current legislation, current QBCC material, and current authorities.
Key Takeaways
Adjudication under Queensland's Building Industry Fairness (Security of Payment) Act 2017 (Qld) is a fast, statutory process for resolving construction payment disputes in Queensland, built around strict deadlines and procedural compliance. It is one of the most effective tools available to recover payment for construction work, related goods, and services.
A payment claim must be validly made and validly served. If it is materially defective, the adjudication pathway may fail at the threshold.
Service of every critical document — the payment claim, the payment schedule, the adjudication application, the adjudication response, any warning notice, and any notice of suspension — must comply with the contractual and statutory requirements. A failure of service at any stage can invalidate the step taken and may expose any resulting determination to challenge.
A respondent’s payment schedule is critical. A late, materially inadequate, or missing schedule can have severe consequences, including immediate liability exposure and major restrictions in adjudication.
Adjudication is all about “pay now, argue later.” It creates an interim binding payment outcome, not a final determination of all contractual rights.
The adjudication application process is deadline-sensitive and form-sensitive. Miscalculating the time to apply or failing to use and serve the approved form and accompanying material in accordance with the Act, can be fatal.
There is no general merits appeal from an adjudicator's decision. The challenge pathway is narrow, high-threshold, and expensive — confined principally to judicial review or related supervisory relief for jurisdictional error, such as the adjudicator going beyond power, denying natural justice, failing to consider matters the Act requires, or proceeding without a valid jurisdictional precondition.
Contents
Adjudication Timeline at a Glance
A typical Queensland adjudication sequence under the Building Industry Fairness (Security of Payment) Act 2017 (BIF Act) looks like this:
A valid reference date arises under the contract or, if the contract is silent, by operation of s 67 of the BIF Act.
The claimant serves a payment claim on or after that reference date, complying with the identification, content, timing and service requirements of the BIF Act.
The respondent serves a payment schedule within the earlier of the contractual period or 15 business days — or fails to do so.
One of three adjudication triggers is enlivened: the scheduled amount is less than the claimed amount; no payment schedule is served in time; or the scheduled amount is not paid by the due date.
The claimant lodges an adjudication application with the QBCC Adjudication Registrar in the approved form, within the applicable statutory period (20 or 30 business days, depending on the trigger).
The respondent gives the adjudicator an adjudication response within the prescribed time — 10 business days for a standard claim, 15 for a complex claim — confined to the reasons for withholding payment already stated in the payment schedule; if no payment schedule was served, the respondent has no right to respond at all.
The adjudicator decides whether they have jurisdiction, values the construction work, and determines the adjudicated amount, the date payable, and interest.
The respondent pays the adjudicated amount within five business days (or such later date as the adjudicator allows), or the claimant moves to enforcement — including registration as a court judgment, suspension of work, or insolvency proceedings.
In limited cases, a party seeks judicial review on jurisdictional grounds — not on the merits of the decision.
That sequence sounds simple. In practice, each stage is heavily regulated, and non-compliance at any point can be fatal to a party's position.
Understanding Adjudication in Queensland
If you are not getting paid for construction work in Queensland — or you are facing a construction payment dispute over a progress payment, a final payment, or retention — adjudication may be the fastest route to recovering what you are owed. Adjudication is a statutory mechanism for the rapid resolution of payment disputes in Queensland's building and construction industry. Governed by the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act), it is designed to keep money flowing through the contractual chain and reduce the commercial damage caused by delayed or disputed progress payments. At its core, adjudication is a "pay now, argue later" process. The statutory framework for payment claims, payment schedules, adjudication applications, adjudication responses, adjudication decisions, and enforcement is found principally in ch 3 of the BIF Act.
The process is intentionally fast and highly structured. Rather than broad procedural flexibility, the scheme operates through strict rights, obligations, and timeframes. An adjudicator makes an interim determination about how much, if anything, the respondent must pay the claimant. The adjudicator does not finally determine every issue between the parties for all purposes. Instead, the adjudicator gives a fast statutory decision on the payment dispute as presented in the claim, schedule, application, response, and any permitted supporting material.
That interim character matters. A party dissatisfied with the outcome may still litigate or arbitrate the underlying dispute later, subject to its contractual and legal rights. But unless and until that happens, the adjudicated amount is generally payable. This is why adjudication is fundamentally about cash flow rather than final determination of all rights. The legislation prioritises keeping money moving over waiting for a complete merits hearing.
That is what makes adjudication effective. It is also why procedural discipline matters at every stage. A party that understands the Act, the relevant contract, and the procedural requirements can use adjudication to protect cash flow and apply immediate commercial pressure. A party that misses a deadline, serves a document defectively, or fails to articulate its position properly can lose important rights very quickly.
When Does the BIF Act Apply?
The adjudication regime does not apply to every building and construction contract in Queensland. The first question is always whether the contract and the work fall within the scope of the Act.
Broadly, the BIF Act applies where there is a construction contract for construction work, or for related goods and services, carried out in Queensland. The key defined terms are addressed in, among other provisions, ss 10, 11, 12 and sch 2 of the BIF Act. A construction contract can be written, oral, or partly both. That matters because parties sometimes assume the statutory regime cannot apply without a formally executed contract. That assumption is dangerous. If the substance of the arrangement meets the statutory definition, the Act may apply regardless of whether the agreement was ever formally documented. Importantly, parties cannot contract out of the BIF Act's provisions. A contractual term that attempts to exclude or limit the Act's operation is generally void to the extent of the inconsistency: see s 200 of the BIF Act.
Construction work is broadly defined. It includes erecting, altering, repairing, and demolishing buildings and structures; civil engineering work such as roads, bridges, and tunnels; trade work including plumbing, electrical, and mechanical; excavation and site preparation; and associated professional services including design, engineering, and project management where those services are linked to construction work. Related goods and services — including the supply of construction materials, prefabricated components, and equipment hire with an operator — can also fall within the regime.
The Queensland territorial link is essential. The work or related goods and services must be sufficiently connected to Queensland for the Act to operate. Where work is partly carried out in Queensland and partly outside, the question of whether the territorial connection is sufficient should not be assumed and should be checked carefully against the facts and the current authorities.
Exclusions and limitations
Several categories of contract and work fall outside the BIF Act's scope:
The owner-occupier residential exclusion removes from the regime most contracts between a homeowner and a builder for work on a residential property where the homeowner resides or intends to reside. However, the exclusion does not extend to subcontractors working on residential projects — builders remain obliged to comply with the Act's payment obligations to their subcontractors, even on excluded residential projects.
Employment contracts are excluded. Employees whose rights are governed by employment law cannot use the BIF Act.
Resources sector exclusions apply to certain drilling, mining, and petroleum operations, unless the relevant work relates to construction of associated infrastructure such as roads, buildings, or other permanent structures on the relevant site.
The regime also does not apply where the consideration under the contract is non-monetary. Barter arrangements or in-kind payment structures are outside the Act.
The BIF Act contains additional exclusions beyond those summarised above. The full scope of the exclusions should be checked directly against the current text of the Act where there is any doubt about whether a particular contract or category of work falls within the regime.
Goods, services, and professional services
The Act's application to related goods and services means that suppliers of construction materials, equipment, and associated services can be protected even where they are not performing construction work themselves. Professional service providers — including architects, engineers, surveyors, and project managers — can also fall within the regime where their services are sufficiently connected to construction work being carried out. The connection to actual construction work is the key threshold requirement.
Partly oral contracts
Where a contract is partly oral and partly written, the Act can still apply. The substance of the arrangement is what matters. Where parties are exchanging purchase orders, emails, and verbal instructions without a formal subcontract, the risk that the statutory regime applies is real and should be assessed.
Work partly outside Queensland
Where construction work is performed partly in Queensland and partly in another jurisdiction, the analysis of whether the BIF Act applies requires careful examination of where the work was primarily performed and where the relevant obligations arose. The territorial link cannot be presumed from the fact that one party is based in Queensland.
Because jurisdiction is foundational, scope should never be assumed. It should be checked against the specific facts of the contract and the work, including any exclusions that may apply.
The Critical Link to QBCC Licensing
This is not a peripheral regulatory issue — it sits alongside the scope and exclusion questions above as a foundational eligibility matter, because it can go directly to the claimant's entitlement to payment.
Under the Queensland Building and Construction Commission Act 1991 (Qld), unlicensed building work can deprive the contractor of entitlement to monetary consideration for that work. If the claimant lacks a legal entitlement to payment because of a licensing defect, adjudication cannot ordinarily be used to create that entitlement.
In practical terms, that can make licensing a threshold entitlement issue, and in some matters it may also affect whether an adjudication can validly proceed. The interaction between licensing and payment entitlement can be complex, particularly where part of the work required a licence and part did not, or where the licensing defect is arguable rather than clear-cut. A claimant should check the licensing position before investing time and money in preparing a payment claim or adjudication application. If the licensing position is defective, the adjudication strategy may fail at the threshold.
Do not risk your entire recovery on a preventable licensing technicality; instruct our team for a rapid QBCC compliance review to secure your commercial position before you serve your claim.
Practical Risk Point
Before making a payment claim, confirm:
the claimant held the correct QBCC licence for the relevant work;
the licence covered the relevant scope for the relevant period; and
there is no obvious licensing-based defence capable of defeating entitlement at the threshold.
Due Dates for Payment: The Hidden Trigger That Controls Everything
The due date for payment is one of the most consequential and frequently misunderstood concepts in the BIF Act. It is not merely the date by which a respondent must pay. It is the point from which adjudication application deadlines, court recovery pathways, suspension rights, and warning notice requirements are worked out. An error in identifying the correct due date can therefore create multiple downstream problems.
What is the due date for payment under the contract?
The starting point is the construction contract itself. If the contract specifies when a progress payment becomes due, that contractual date generally governs, subject to the statutory overrides described below. Many contracts set due dates by reference to a fixed number of days after a payment claim is submitted, after a superintendent's assessment, or after a reference date. The contractual mechanism must be examined carefully, because what the contract says the due date is and what the Act allows the due date to be can diverge.
When does the BIF Act default position apply?
If the contract does not address when a progress payment becomes due, the BIF Act supplies a default. Under the Act, the default due date for a progress payment is 10 business days after the day on which the payment claim is given. That default position should be checked against ss 73 and 74 of the BIF Act and any applicable QBCC Act override. That default applies whenever the contract is silent on the matter. It is also the fallback position if the contractual payment period is found to be void.
When do the QBCC Act maximum payment periods override the contract?
Where the work under a construction contract constitutes building work for the purposes of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), sections 67U and 67W of that Act impose maximum payment periods that override any inconsistent contractual term.
Those provisions operate as follows:
For a commercial building contract (that is, a head contract between a principal and head contractor): any contractual term requiring payment more than 15 business days after the payment claim is given is void. If the contractual period exceeds 15 business days, the offending provision is void and the statutory default position under the BIF Act should then be considered.
For a subcontract or construction management trade contract (that is, contracts at subcontractor level): any contractual term requiring payment more than 25 business days after the payment claim is given is void. If the contractual period exceeds 25 business days, the offending provision is void and the statutory default position under the BIF Act should then be considered.
The practical significance is immediate. A respondent who believes it has 30 days to pay under its subcontract may in fact have 25 business days at most — and if the subcontract is ambiguous or silent, only 10 business days. The relevant provisions are ss 67U and 67W of the QBCC Act.
Where a contract was entered into before the commencement of sections 67U and 67W of the QBCC Act, the application of the maximum payment period provisions to that contract should be checked carefully against the relevant transitional provisions. Older contracts may raise additional questions about whether and when the statutory caps took effect.
"Pay when paid" clauses do not ordinarily assist the respondent
Contractual provisions that make a subcontractor's payment conditional on the head contractor first receiving payment from the principal — so-called "pay when paid" clauses — have no effect under the BIF Act: see s 74(1). They cannot ordinarily be relied on as a basis for withholding or deferring payment past the due date and they will not ordinarily justify non-payment in adjudication or court proceedings.
Why the due date matters across the whole statutory process
The due date for payment is not just a payment obligation. It is the statutory clock for almost every other right and deadline in the BIF Act.
Specifically:
The claimant's right to adjudicate is triggered by the respondent's failure to pay by the due date.
The adjudication application deadlines under section 79 — 30 business days or 20 business days, depending on the pathway — are each calculated by reference to the due date for payment (see Stage 3: The Adjudication Application).
The section 99 warning notice required before commencing court proceedings must be given no later than 30 business days after the due date for payment (see Court Recovery, Warning Notices, and Debt Pathways).
The right to suspend work under section 98 also depends on non-payment by the due date (see Suspending Work for Non-Payment).
A claimant who miscalculates the due date may serve its warning notice too late, lodge its adjudication application out of time, or attempt to suspend work prematurely. All of those errors can be fatal to the claimant's position.
At Merlo Law, our senior counsel regularly untangle these complex statutory overrides for both head contractors and subcontractors across Queensland and NSW. We pinpoint the exact, legally binding due dates that dictate your next move, ensuring your statutory leverage is deployed with absolute precision.
Common mistakes in identifying the due date
The most frequent errors practitioners see in due date analysis include: accepting the contractual due date without checking whether the QBCC Act caps apply; failing to recognise that a clause providing for payment more than 15 or 25 business days after the claim is void; assuming that a "pay when paid" clause extends the due date; and failing to recalculate the due date when the claimed statutory period turns out to be void and the 10 business day default kicks in instead.
Practical Risk Point
Before calculating any adjudication application deadline, warning notice deadline, or suspension right, identify the correct due date for payment first. Check the contract, check whether the QBCC Act caps apply, and check whether any contractual term affecting the due date is void. Then calculate every downstream deadline from that confirmed due date.
Due Date Decision Table
Contract position | Applicable maximum period | Result if exceeded |
Head contract (commercial building contract) | 15 business days after payment claim | Contractual term is void; 10 business day default applies |
Subcontract or trade management contract | 25 business days after payment claim | Contractual term is void; 10 business day default applies |
Contract silent on due date | N/A | 10 business day statutory default applies |
"Pay when paid" clause | N/A — has no effect in all cases: see s 74(1) | 10 business day default applies |
Stage 1: The Payment Claim
Making a payment claim under the BIF Act is the statutory trigger for the adjudication process. A payment claim in Queensland is not just a commercial invoice. It is the document that starts the formal payment regime under the BIF Act and imposes serious obligations on the respondent.
If the payment claim is valid, it may trigger the respondent’s obligation to serve a payment schedule and may lay the foundation for adjudication. If it is invalid, the statutory process may fail before it truly begins.
That is why payment claim preparation should be treated as a legal exercise, not just an accounts exercise.
The Critical Importance of the Reference Date
A payment claim cannot be validly made at any time the claimant chooses. It must be made on or after a valid reference date.
A reference date is the point at which the right to claim a progress payment arises. The contract is the first place to look. If the contract identifies when claims may be made, those contractual provisions usually drive the reference date analysis.
If the contract does not provide for reference dates, the BIF Act supplies a default framework.
The key practical point is this: a prematurely served claim may be invalid. A claim served even one day before the relevant reference date may fail as a statutory precondition to the payment claim regime: see generally ss 70 and 75 of the BIF Act. If that happens, the respondent may not be required to serve a payment schedule, and any later adjudication application based on that claim may also fail.
A claimant is limited to one payment claim per reference date: see s 75(4) of the BIF Act. That prevents repetitive or overlapping claims for the same entitlement period and reinforces the need for disciplined progress claim administration.
Case law in practice
Queensland authority has treated the existence of an available reference date as a foundational precondition to a valid payment claim. A claim served before the relevant reference date is premature and may be invalid, with the consequence that the statutory process — including any adjudication application built upon it — may not validly proceed. The date of service must be on or after the reference date, not merely close to it. Where a contract specifies a date for submission of progress claims, that date controls the reference date analysis for the purposes of the BIF Act, overriding any deeming provision that would otherwise move the reference date earlier.
What Makes a Payment Claim Valid Under the BIF Act?
A payment claim must satisfy the statutory requirements. In substance, it must satisfy s 68 of the BIF Act: identify the construction work or related goods and services to which the claim relates; state the amount claimed to be payable; request payment of that amount; and include any other information prescribed by regulation under s 68(1)(d). Each of these elements has generated dispute and deserves careful attention.
Identifying the work
This is one of the most litigated requirements in Queensland adjudication. The test is objective. The question is whether the payment claim gives the respondent enough information to understand what is being claimed and to decide how to respond. The required level of detail is contextual — it depends on the size and complexity of the project, the contract structure, the nature of the work, and the prior course of dealings between the parties.
Queensland courts have confirmed that payment claims are not required to be as precise and particularised as court pleadings, but the description of the work claimed must be sufficient to apprise the parties of the real issues in dispute. A bare percentage claim against a large lump sum trade package that does not explain what work is being valued or why that percentage has been reached may not meet the standard. The question is not whether the claimant knows what it is claiming — it is whether the respondent can understand it well enough to formulate a substantive response.
When your high-value payment claim faces aggressive scrutiny, request an urgent review from our adjudication specialists to ensure your documentation survives jurisdictional challenge.
Stating the claimed amount
The payment claim must state a clear and unambiguous claimed amount. Inconsistencies between a cover page figure and the supporting calculation pages, or a failure to express GST inclusive and exclusive figures clearly, can create avoidable disputes about what amount was actually claimed. The respondent must be able to identify the exact amount said to be payable without having to perform reconciliation work that the claimant should have done.
Requesting payment
The payment claim must amount to a request for payment. Section 68(3) of the BIF Act provides that a written document bearing the word "invoice" is taken to be a request for payment, which reduces the risk for claims structured as invoices. However, formulaic expressions such as "amount due this claim" may not, in some circumstances, amount to a sufficiently clear request for payment. The safer course is to include an express and unambiguous statement requesting payment of the claimed amount, rather than relying on implication or on standard accounting phrases that may fall short of the statutory requirement.
One claim per reference date
A claimant is generally limited to one payment claim per reference date. This reinforces the need for disciplined progress claim administration. Where a claimant has already served a payment claim for a given reference date, no further payment claim can be made in respect of that reference date — the claimant must wait for the next reference date to arise.
Fresh claims under subsequent reference dates
Although a claimant is limited to one payment claim per reference date, a claimant may serve a fresh payment claim under a subsequent reference date for the same or overlapping work. This is sometimes described as the "second bite" at the payment claim. A fresh claim under a new reference date is a new payment claim for the purposes of the BIF Act, and it triggers a new obligation on the respondent to serve a payment schedule and, if the statutory conditions are met, a new right to apply for adjudication.
The interaction between a fresh payment claim and a prior adjudication determination for overlapping work can raise complex issues, including whether the adjudicator determining the later claim is bound by findings in the earlier determination, and how previously adjudicated amounts should be treated in the valuation of the later claim. These issues should be checked against the current authorities.
The practical significance is that a claimant whose first payment claim fails — whether because of a validity defect, a service failure, or a missed adjudication application deadline — is not necessarily without remedy. If a subsequent reference date is available, a fresh payment claim may be served. However, the fresh claim must comply independently with all of the BIF Act's requirements, and any defect in the earlier claim does not automatically carry over as a basis for the later one.
Final payment claims
The timing rules for final payment claims differ from those governing progress claims. A final payment claim — being a claim relating to the final payment under the contract — must be given before the end of whichever of the following periods is the longest: the period worked out under the contract (if any); 28 days after the end of the last defects liability period under the contract; six months after the completion of all construction work under the contract; or six months after the complete supply of all related goods and services under the contract. These are longer windows, but they are not unlimited, and a final payment claim served after the longest of those periods has ended may be void. The timing rules should be checked directly against s 75 of the BIF Act when preparing any final payment claim.
Contractual preconditions and the Act's override
Many construction contracts include preconditions to the right to serve a payment claim — for example, requiring the claimant to provide a statutory declaration confirming subcontractors have been paid, or to produce evidence that insurance is in place. Section 200 of the BIF Act prevents parties from contracting out of the Act’s provisions. This means that even if a contract purports to impose additional preconditions on the making of a payment claim, those contractual requirements do not necessarily control the validity of a statutory payment claim under the Act. The contractual requirement may still be enforceable as a matter of contract law, but it does not necessarily invalidate the statutory payment claim if the Act's requirements are otherwise met.
Case law in practice
Queensland courts have repeatedly treated the identification of work requirement as a threshold jurisdictional issue. A payment claim that fails to sufficiently identify the work may be invalid, and an adjudication application built on that claim may be vulnerable to jurisdictional challenge or enforcement resistance. The question of sufficiency is assessed objectively, from the perspective of a reasonable person in the position of the respondent.
Payment Claim Validity Checklist
A payment claim should, at minimum, confirm:
the correct parties;
the correct contract;
the relevant reference date;
a clear description of the work or goods/services claimed;
the exact claimed amount;
any other information prescribed by regulation;
correct date of issue;
compliant service method; and
service evidence retained.
If any of these elements is missing or defective, the document may not qualify as a valid payment claim under the Act.
If you are the claimant
Treat every payment claim as a legal document, not a commercial invoice. Confirm the reference date, check your QBCC licence, identify the correct service method, and retain evidence of service. A defective claim that cannot be rescued will force you to wait for the next reference date, by which time significant time and money may have been lost. If you are unsure whether your payment claim complies with the BIF Act, obtaining advice before service is significantly cheaper than attempting to repair the position after a defect has crystallised.
If you are the respondent
Receiving a payment claim starts the clock immediately. Identify the payment schedule deadline the day the claim arrives. Begin preparing your schedule without delay, and resist the temptation to rely on prior correspondence as a substitute for proper reasons.
If you are the principal or head contractor
Understand the QBCC Act maximum payment periods that apply to your head contract and to any subcontracts under it. A contractual payment period longer than the statutory maximum is void, and a due date error flows downstream into every adjudication and court recovery deadline.
Service Rules: The Procedural Trap That Can Void the Entire Process
A valid payment claim must also be validly served — but service is not just a payment claim issue. Under the BIF Act, every critical document in the adjudication process — the payment claim, the payment schedule, the adjudication application, the adjudication response, any warning notice, and any notice of suspension — must be validly served. A failure to serve any one of these documents in a compliant manner can invalidate the step taken and, in the case of the adjudication application, may expose any later determination to challenge. The service principles discussed in this section apply to every critical document in the process, not only to payment claims.
The hierarchy: contract first
The starting point for service of any document under the BIF Act is always the construction contract. Section 102 of the BIF Act provides that a document required or permitted to be given under ch 3 is to be given in the way, if any, provided for under the relevant construction contract. If the contract specifies addresses, nominated representatives, email addresses, or project platform requirements, those provisions control. The serving party should identify and comply with the contractual service regime before relying on any statutory fallback.
Acts Interpretation Act 1954 (Qld) — the fallback
Where the contract is silent on service method, section 39 of the Acts Interpretation Act 1954 (Qld) applies as a fallback. That fallback should also be read with s 102 of the BIF Act and, where the respondent is a corporation, any applicable service provisions under the Corporations Act 2001 (Cth). That provision authorises service on an individual by personal delivery, or by leaving or posting the document at the person's last known place of residence or business. For a body corporate, it authorises delivery by the same means to the entity's head office, registered office, or principal office. Email is not expressly listed in s 39, and Queensland authority has left room for argument about whether email alone falls within the “similar facility” language used in that provision. That risk can usually be managed where the contract expressly authorises email service, but absent a clear contractual basis or another clear legal basis, email-only service may carry material validity risk.
Corporate service issues
Where a party is a company, the Corporations Act 2001 (Cth) provides additional authorised service methods, including service at the company's registered office or by post to that address. These methods are available in addition to the contractual and Acts Interpretation Act pathways. Where there is any doubt about whether service on a particular individual has been authorised, service at the registered office of the corporate entity will often be the safer approach.
The platform and hyperlink risk
As discussed in the payment claim service section, Queensland authority has treated service methods that merely provide a link or retrieval pathway, rather than delivering the document itself, as carrying significant risk. The same concern may arise for other BIF Act documents, not just payment claims. Service via Aconex or similar document management platforms may be effective where the contract permits it, but upload alone should not be assumed to constitute effective service in every case. Any platform-based service should be checked carefully against the contract and the current authorities.
Serving the complete adjudication application
Special attention is required when serving the adjudication application on the respondent. The claimant should serve a complete copy of the application, including the current approved Form S79 and all submissions and supporting documents lodged with the QBCC, so that what is served matches what was lodged for the purposes of s 79(4) of the BIF Act. In Platform Constructions Pty Ltd v Fourth Dimension Au Pty Ltd [2025] QCA 264, the Queensland Court of Appeal set aside an adjudication decision because seven files comprising the subcontract had not been sent by the claimant to the respondent as part of the adjudication application service. The documents were lodged with the QBCC but not served on the respondent. That omission was treated as fatal in that case. The lesson is clear: what was lodged and what was served must be identical. The serving party should conduct a document-by-document comparison before service occurs. At a minimum, the served package should be checked carefully to ensure it includes the same form, submissions, and attachments lodged with the QBCC for the purposes of s 79(4).
Procedural slip-ups in service are the most common unforced errors we see disrupting commercial construction outcomes. Having navigated the rigid service frameworks across major QLD and NSW projects, Merlo Law provides the meticulous, straight-talking oversight required to execute flawless service and safeguard your adjudication rights.
Timing of service of the adjudication application
Under section 79(4) of the BIF Act, the claimant must give a copy of the adjudication application and any accompanying submissions to the respondent within 4 business days after lodging the application with the QBCC. This is a separate and independently enforceable obligation. Lodging with the QBCC on time but serving the respondent late — or incompletely — may expose any resulting determination to jurisdictional challenge.
Proving service: evidence preservation
Proof of service is not merely an administrative detail. In disputes about whether an adjudication determination is valid, the question of whether a document was served, when it was served, and what it contained can be directly decisive. Best practice is to retain: timestamps, email delivery receipts or read receipts, courier delivery confirmations, platform upload and access logs, and any other contemporaneous evidence that the document was transmitted to the correct person at the correct address, at the relevant time.
Service Method Risk Table
Service method | Risk level | Notes |
Personal delivery of document | Low | Safest; retain witness evidence |
Post to last known address (via registered post) | Low-Medium | Allow for delivery time; retain receipt |
Email to contractually authorised address | Low (if contract authorises it) | Retain delivery and read receipts; attach document directly |
Email without clear contractual authorisation or other clear legal basis | High | Queensland authority does not clearly establish that email alone will be effective under the Acts Interpretation Act fallback |
Aconex or similar platform (contract authorised) | Medium | May be effective if the contract permits; timing of access may be critical |
Dropbox, hyperlink download, or similar retrieval-only method | Very high | Queensland authority has treated this as carrying very significant validity risk |
Auto-generated portal document used instead of the approved form | Very high | May not satisfy the approved form requirement or the service obligation in s 79(4); this should be checked carefully against current authority |
Service by Email and Electronic Means
Email service is common in the industry, but it should not be approached casually. The right to serve by email depends first on whether the contract authorises it, and second on whether the email is actually sent to an address that can be shown to have been accepted for that purpose. Queensland authority has created uncertainty about whether email alone satisfies the Acts Interpretation Act 1954 (Qld) as a "similar facility" to post or facsimile. That doubt can be managed by ensuring the contract expressly permits email service, but even then the serving party must be able to prove that the correct address was used and the document was actually transmitted in a way capable of being received and accessed.
File-sharing links and document management platforms
This is a high-risk area that deserves dedicated attention. Queensland authority indicates that service by Dropbox — or by any method that requires the recipient to click a link and download a file rather than receiving the document itself — carries serious risk for the purposes of the BIF Act and section 39 of the Acts Interpretation Act. The reasoning is that service by that method does not result in the recipient actually receiving the document; it merely gives them an opportunity to retrieve it. That is not the same thing. The point should be checked against the current authorities on electronic service, including the Queensland line of cases treating mere retrieval access differently from actual giving of the document.
The position with project management platforms such as Aconex is more nuanced. Where the contract permits service via Aconex, service can be effective through that platform. However, uploading a document to Aconex and marking it "sent" does not automatically mean it has been served. Queensland authority indicates that upload alone may not be enough, and that questions of access, receipt, and contractual authorisation may be critical. Timing issues can therefore arise in circumstances where the deadline is tight and the respondent has not actively logged in.
Direct delivery of the actual document by a clearly authorised method remains the only reliable approach.
Practical Risk Point
Before serving any document under the BIF Act, confirm:
(a) the contract's authorised service method;
(b) that the document itself — not merely a link — is being delivered;
(c) that the correct address, email address, or platform is being used; and
(d) that evidence of delivery (including timestamps, read receipts, or delivery confirmations) is retained immediately.
Time Limits for Serving the Claim
A valid claim must also be served within the statutory time limits.
For most progress claims, the BIF Act requires service within the later of:
the period worked out under the contract, if any; or
six months after the work was last carried out or the related goods and services were last supplied.
Different rules apply to final payment claims. Those claims are subject to a separate timing regime and should be checked carefully against the contract and the Act.
The practical lesson is simple: service method and timing are both legal issues, not administrative afterthoughts.
Stage 2: The Payment Schedule (The Response)
The payment schedule is the respondent’s formal statutory response to the payment claim. It is not optional and it is not a document that can safely be left to the last minute.
In many cases, the payment schedule will determine what the respondent can and cannot argue later. It is therefore one of the most important documents in the entire process.
The Deadline to Respond Is Strict
Once a valid payment claim is received, the respondent must provide a payment schedule within the earlier of:
the time required by the contract; or
15 business days after the claim is given.
That deadline is among the most unforgiving in the BIF Act. If it is missed, the respondent can lose critical defensive rights very quickly.
A respondent should therefore identify the deadline immediately, calculate it conservatively, and begin preparing the schedule without delay.
What Must a Valid Payment Schedule Contain?
A valid payment schedule must: identify the payment claim to which it responds; state the amount the respondent proposes to pay (if any); and if that amount is less than the claimed amount, explain why payment is being withheld. Section 69 of the BIF Act governs these requirements. The time for giving the payment schedule is governed by s 76. Each element matters, and the consequences of deficiency escalate rapidly.
No reasons vs insufficient reasons vs vague reasons — a critical distinction
Queensland courts have drawn clear distinctions between the consequences of different levels of deficiency in a payment schedule:
Where the payment schedule contains no reasons for withholding payment, there is a substantial risk that it will be treated as non-compliant, and in some circumstances invalid, with serious downstream consequences.
Where the payment schedule contains insufficient reasons — that is, reasons that exist but do not adequately explain the basis for withholding — the respondent is confined to those reasons in the adjudication response and cannot introduce materially new reasons later.
Where the payment schedule contains vague reasons — assertions such as "defective work", "overclaim", or "incomplete" without meaningful specificity — those reasons may give the claimant little of substance to address and the adjudicator little to work with in determining the adjudicated amount.
Case law in practice
Queensland authority indicates that where a payment schedule contains no articulated basis for challenging the valuation in the payment claim, the respondent may be treated as having failed to raise that valuation dispute properly. Where no reasons are stated for withholding payment, the schedule may be vulnerable to invalidity arguments. Where reasons are given but are inadequate, the respondent is generally confined to those reasons in the adjudication response. Authority also indicates that courts will not readily infer reasons from ancillary material such as old emails, meeting minutes, or prior correspondence unless the schedule itself makes the position clear.
The respondent is bound by the reasons stated
This is the fundamental principle that flows from the payment schedule: The respondent is generally confined to the reasons it has included, and cannot supplement or replace those reasons in the adjudication response: see ss 82(4) and 88(3) of the BIF Act. Queensland courts have confirmed that a respondent will not be permitted to rely on reasons that were not articulated in the payment schedule, even if those reasons were apparent from other documents in the parties' prior dealings. The court will not infer reasons from ancillary correspondence, meeting notes, or prior emails. The reasons should appear clearly within the four corners of the payment schedule itself.
What the schedule should say
The schedule should identify precisely which items or components of the payment claim are disputed, explain why each disputed item is not payable or is payable in a lesser amount, and — where the dispute concerns valuation — provide an alternative valuation with supporting reasoning. If defects are alleged, the schedule should identify the defective work specifically and, ideally, provide some indication of the estimated cost of rectification. If work is disputed as being outside scope, incomplete, or not yet certified, the schedule should explain that position in enough detail for the claimant to understand the case it has to meet.
Supporting documents can assist, but the reasons must appear in the payment schedule itself. A schedule that attaches a voluminous report and says nothing of substance in its own body is a dangerous document.
Self-contained is the benchmark
The safest schedule is one that is fully self-contained: a reader who has only the payment claim and the payment schedule should be able to understand exactly what is disputed, why it is disputed, and what alternative position the respondent is advancing. Any gap in that picture may become difficult or impossible to repair later.
The Severe Consequences of Failing to Provide a Payment Schedule
Failing to provide a valid payment schedule on time is one of the most damaging mistakes a respondent can make under the BIF Act. The consequences are severe and, in practical terms, often immediate.
Where no valid payment schedule is provided within the required period, the claimant may seek to recover the full claimed amount as the amount owed under the statutory regime, subject to the Act. The claimant may then pursue that amount either through adjudication or through court recovery as a statutory debt under ss 78 and 79 of the BIF Act — and in court proceedings, the respondent is statutorily barred from raising any defence or counterclaim under the construction contract. The respondent’s ability to contest the claim on its merits is materially curtailed in the statutory debt proceeding. The court's role is confirmatory, not evaluative.
In adjudication, section 82(2) of the BIF Act provides that a respondent who failed to give a payment schedule as required under section 76 must not give an adjudication response at all. That is expressed as a statutory prohibition rather than a discretionary case-management power. That harsh result is not accidental — it reflects the BIF Act's deliberate design principle that respondents must engage formally and promptly when a payment claim arrives.
Consequences of Serving a Valid Schedule vs Failing to Respond
Issue | Valid Schedule Served | No Valid Schedule Served |
Respondent's position | Preserved and defined | May be severely compromised |
Ability to explain withholding reasons | Yes, within the scope of reasons stated | May be lost or drastically reduced |
Exposure to full claimed amount | Reduced to disputed pathway | Significantly increased — full amount owed |
Defence/counterclaim rights in court proceedings | Preserved | Barred by statute |
Adjudication posture | Respondent may participate on preserved reasons | Respondent may face serious statutory limitations or exclusion |
Strategic control | Retained | Often lost immediately |
If you are the claimant
A poorly articulated payment schedule is an opportunity. Where the respondent's schedule fails to engage with your valuation, that acceptance may bind the respondent in adjudication. Where the schedule is missing altogether, your path to recovery — whether through adjudication or court — is significantly clearer.
If you are the respondent
The payment schedule is your most important document. It defines the case you can run in adjudication. Vague, incomplete, or missing schedules are not errors that can be repaired later. If you have received a payment claim and are unsure how to respond, obtaining advice from a construction lawyer before the payment schedule deadline expires is critical — once the deadline passes, the consequences are severe and largely irreversible.
If you are the principal or head contractor
The obligation to serve a payment schedule runs to your subcontractors independently. Each payment claim received triggers its own 15-business-day response obligation. A failure on any one claim can have immediate financial and strategic consequences.
Stage 3: The Adjudication Application
Once the payment dispute is ripe for adjudication, the claimant may lodge an adjudication application with the QBCC Adjudication Registry.
This is a deadline-sensitive and form-sensitive step. A claimant who gets the application wrong may lose the right to adjudicate altogether.
Strict Timeframes for Applying
The applicable adjudication application deadline depends entirely on what happened after the payment claim was served. This is one of the most dangerous parts of the BIF Act, because there is no single universal window. The period changes depending on whether a payment schedule was served, what it said, and whether any payment was actually made by the due date.
Getting this wrong is often fatal. A late adjudication application will ordinarily be invalid, and there is no general power under the BIF Act to extend the time for applying. In practical terms, the right to adjudicate that payment claim is usually lost.
Pathway 1: A payment schedule is served for less than the claimed amount
If the respondent gives a payment schedule and the scheduled amount is less than the amount claimed in the payment claim, the claimant generally has 30 business days after receiving the payment schedule to lodge an adjudication application. Under s 79(2)(b)(iii) of the BIF Act, time runs from receipt of the schedule, not from the due date for payment. The claimant should therefore calculate the deadline the moment the payment schedule lands, not when payment falls due.
Pathway 2: No payment schedule is served and the full claimed amount is not paid
If the respondent fails to give a payment schedule within the required time and also fails to pay the full claimed amount by the due date for payment, the claimant generally has 30 business days after the later of: (a) the due date for payment; and (b) the last day on which the respondent was entitled to give the payment schedule under s 76 of the BIF Act: see s 79(2)(b)(i). Because the trigger is the later of two dates, a claimant who miscalculates the payment schedule deadline will also miscalculate the adjudication application deadline. One error compounds into the other.
Pathway 3: A payment schedule is served but the scheduled amount is not paid
If the respondent gives a payment schedule, states a scheduled amount, but then fails to pay that scheduled amount by the due date for payment, the claimant has a shorter window: 20 business days after the due date for payment: see s 79(2)(b)(ii) of the BIF Act. This is the tightest deadline in section 79. It is also easily missed if a claimant incorrectly identifies the due date — a due date error here directly produces a deadline error.
Why "business day" matters
The BIF Act counts in business days, not calendar days. Public holidays and weekends are excluded. The BIF Act's definition of business day in sch 2 excludes three specific sub-periods: 22 to 24 December, 27 to 31 December, and 2 to 10 January. The intervening days (25–26 December and 1 January) are independently excluded as public holidays under the same definition. The practical effect is that no day from 22 December to 10 January counts as a business day under the BIF Act. The QBCC Act (ss 67U and 67W) achieves the same result by reference to a single continuous period from 22 December to 10 January inclusive. Either way, the holiday exclusion spans approximately three weeks and can significantly extend apparent deadlines near year end. It should be factored into every calculation near year end. The definition should be checked directly in sch 2 of the BIF Act when calculating any BIF Act deadline near year end.
Lodgement timing within the day
The QBCC approved Form S79 currently states that an adjudication application must be lodged no later than 5 pm on a business day, and that an application lodged after 5 pm is taken to be lodged on the next business day. That published requirement should be checked against the current QBCC form in use at the time of lodgement.
(At the time of writing, the current QBCC Form S79 states that an application lodged after 5 pm on a business day is taken to be lodged on the next business day.)
Calculate the deadline the day the trigger event occurs — whether that is the day the payment schedule arrives, the due date for payment, or the last day for a schedule.
Adjudication Application Deadline Table
Scenario | General trigger | General time to apply |
Payment schedule for less than claimed amount | Receipt of payment schedule | 30 business days |
No payment schedule and no full payment | Later of due date for payment and last day for schedule | 30 business days |
Scheduled amount unpaid by due date | Due date for payment | 20 business days |
Practice note: Always verify the current text of section 79 of the BIF Act and calculate the deadline against the actual chronology of the claim, schedule, and payment default. Do not rely on general recollection of the timeframes. Apply them to the specific dates in your matter.
Preparing the Application: Form and Substance
Under s 79(2)(a) of the BIF Act, an adjudication application must be made in the approved form. The QBCC currently publishes Form S79 for this purpose, and the current form states that the approved application form includes all seven pages.
Case law in practice
Queensland authority has emphasised the importance of using the approved form required by s 79(2)(a) and ensuring that the respondent receives the adjudication application and accompanying material required by s 79(4). In Platform Constructions Pty Ltd v Fourth Dimension Au Pty Ltd [2025] QCA 264, the Court of Appeal reinforced the need for strict compliance with the statutory service requirements. The practical obligation is to ensure that the respondent receives the complete approved form and the accompanying material served under the Act. Neither partial service nor reliance on an auto-generated portal document should be assumed to be a safe substitute without checking the current form, current QBCC process, and current authority carefully.
Use of an outdated or incomplete form can create material validity risk.
Because QBCC procedures and forms may change, applicants should always download the current form directly from the QBCC website immediately before lodging the application. They should not rely on saved copies, old templates, or prior project versions.
(The current QBCC Form S79 also states that the claimant must give the respondent a copy of the approved application form and all accompanying submissions, and that the approved application form includes all seven pages.)
Practical Risk Point: The Approved Form — All Seven Pages
Queensland authority indicates that compliance with the approved QBCC form requirement is important and should not be treated as optional. The current seven-page Form S79 forms part of the adjudication application according to the QBCC form presently in use. Where the claimant completes an online lodgement via the QBCC portal, the system-generated confirmation document should not be assumed to be the same as the approved form for service purposes. The safest course is to download the current Form S79 directly from the QBCC website immediately before lodging the application, complete all seven pages in full, include the completed form in both the lodgement package sent to the QBCC and the copy served on the respondent, and retain proof that both steps occurred. Do not rely on the online portal’s auto-generated document as a substitute for the approved form unless the current legal position and QBCC process clearly permit that course.
What Should the Application Contain?
The application should clearly identify:
the payment claim;
any payment schedule;
the construction contract; and
the basis on which the claimed amount is said to be payable.
The claimant should also include the submissions and evidence it relies on. In practical terms, this is the claimant’s main opportunity to present its case. Supporting material may include the contract, variation documents, correspondence, statutory declarations, expert material, payment records, site records, and any other evidence needed to explain why the amount claimed is payable.
Serving the Application on the Respondent
Lodging the application with the QBCC is not enough. The claimant must also give the respondent a complete copy of the adjudication application and its supporting material.
This requirement should be treated seriously. Queensland authority has made clear that strict compliance matters here. If the respondent is not given the same material that was lodged, or if the approved form is not properly included, the determination may be exposed to challenge.
The safest course is to:
serve the complete approved form;
serve the full set of lodged submissions and attachments;
use a clearly authorised service method; and
retain proof of service.
If you are the claimant
Treat the adjudication application as your primary opportunity to present your case. The adjudicator's decision will be shaped largely by what you lodge. Invest the time in clear, well-organised submissions supported by the contract, payment records, and contemporaneous evidence. Confirm the approved form, confirm the deadline, and confirm that what you serve on the respondent is identical to what you lodge with the QBCC. If the amount in dispute is significant, having the application prepared or reviewed by a construction lawyer experienced in adjudication is one of the highest-value steps a claimant can take.
If you are the respondent
When the adjudication application arrives, the clock starts immediately. Identify whether the claim is standard or complex, calculate your response deadline from that day, and begin preparation without delay. Check the application carefully — if it was lodged late, served incompletely, or does not use the current approved form, there may be a jurisdictional objection available.
If you are the principal or head contractor
If adjudication applications are being served on your subcontractors or on you, ensure your internal processes allow the relevant team to identify the application, calculate deadlines, and instruct advisers the same day. The timeframes are too short to accommodate internal routing delays.
Stage 4: The Adjudication Response
If the respondent is entitled to respond, the adjudication response is its formal opportunity to defend its position.
Like the application, the response is governed by strict timing and confined content rules.
Deadline for the Adjudication Response
The response period is fixed by the Act and varies depending on whether the claim is a standard claim or a complex claim under the statutory scheme.
The central practical point is this: as soon as the application is received, the respondent should calculate the deadline immediately and begin work on the response. A late response may be disregarded.
For a standard payment claim, the respondent must provide the adjudication response within 10 business days after receiving the documents referred to in s 79(4) — that is, the adjudication application and any accompanying submissions — or within 7 business days after receiving notice of the adjudicator's acceptance of the appointment, whichever is the later.
For a complex payment claim, the primary response period is the later of 12 business days after notice of the adjudicator's acceptance, or 15 business days after being served with the adjudication application. The specific extension mechanism available for complex claims is addressed below in the Standard vs Complex Claims section.
An adjudication response submitted outside the applicable time limit may be disregarded by the adjudicator: see ss 82 and 88 of the BIF Act. Once the response is given to the adjudicator, the respondent must also serve a copy of the response on the claimant within 2 business days after providing it to the adjudicator. This service obligation is separate and must not be overlooked.
Practical Risk Point
As soon as the adjudication application is received, identify which type of claim it relates to (standard or complex), calculate the applicable response deadline from that day, and begin preparation immediately. Do not wait to confirm the adjudicator's acceptance before starting the response — by the time acceptance is confirmed, a significant portion of the response window may already have elapsed.
Standard Claims and Complex Claims: Why the Distinction Matters
The BIF Act draws a clear distinction between standard payment claims and complex payment claims. This classification determines the applicable timeframes for the adjudication response, the adjudicator's decision, and the availability of extension of time mechanisms. It has tactical implications for both claimants and respondents that are frequently underestimated.
The statutory distinction
Under section 64 of the BIF Act, a complex payment claim is a payment claim for an amount exceeding $750,000, or such greater amount as may be prescribed by regulation. A standard payment claim is any payment claim that does not meet that threshold — that is, a claim for $750,000 or less. Note that prior to 1 October 2020, the definition expressly referred to $750,000 exclusive of GST; the amending legislation removed that qualifier, and the current statutory text simply refers to $750,000 without specifying GST treatment in the definition itself.
The classification is determined by the amount stated in the payment claim, not the amount in dispute and not the adjudicated amount that ultimately results. A claimant who claims $800,000 but whose claim is valued at $300,000 has still made a complex payment claim for the purposes of the classification exercise.
(The classification issue should always be checked against s 64 and any current regulation prescribing a higher amount.)
Because the current statutory text refers to $750,000 without specifying whether that figure is inclusive or exclusive of GST, the position is not free from doubt. The safer course, where the GST-inclusive amount exceeds $750,000, is to treat the claim as a complex payment claim for the purposes of calculating response deadlines and extension availability, and to check the current authorities on this point.
Why the classification matters: response deadlines
For a standard payment claim, the respondent must lodge its adjudication response within 10 business days after receiving the documents referred to in s 79(4) — that is, the adjudication application and any accompanying submissions — or within 7 business days after receiving notice of the adjudicator's acceptance of the application, whichever is later.
For a complex payment claim, the respondent has a longer primary response period: the later of 12 business days after receiving notice of the adjudicator's acceptance of the application, or 15 business days after being served with the adjudication application (and any accompanying submissions). The longer window reflects the greater factual and documentary complexity that complex claims typically involve.
Extension of time for complex claims
For complex payment claims only, a respondent may apply to the adjudicator for an extension of time of up to 15 additional business days. To be eligible, the respondent must make the request in writing within the later of: 5 business days after receiving the adjudication application and any accompanying submissions served under section 79(4); or 2 business days after receiving notice of the adjudicator's acceptance of the adjudication application. The request must include reasons for requiring the extension. The adjudicator must decide the extension application as quickly as possible. If granted, the response must be provided within the extended timeframe.
There is no equivalent extension mechanism for standard claims. A respondent who misses the standard claim response deadline has no equivalent statutory extension mechanism.
Why the classification matters: decision timeframes
The classification also affects how long the adjudicator has to decide the application. For a standard payment claim, the adjudicator must determine the application within 10 business days after the response date. For a complex payment claim, the adjudicator has 15 business days after the response date. If both parties agree, the decision period can be extended by consent before the original due date expires. For complex claims only, the adjudicator also has a unilateral power to extend by up to 5 additional business days. Queensland authority indicates that a decision delivered outside the applicable statutory timeframe will generally be void, including where the time limit in the Act has expired without a valid extension.
Compare, for example, the reasoning in Civil Contractors (Aust) Pty Ltd v Galaxy Developments Pty Ltd & Ors; Jones v Galaxy Developments Pty Ltd & Ors [2021] QCA 10 on out-of-time determinations.
Tactical implications
From a claimant's perspective, a claim just above the $750,000 threshold will attract the complex claim classification and give the respondent more time to prepare a response. Claimants should be aware that a deliberate or inadvertent overclaim can push a claim into complex territory, changing the entire timetable. From a respondent's perspective, identifying that a claim is complex is critical to calculating the correct response deadline and assessing whether to apply for an extension of time.
Standard vs Complex Claim Comparison Table
Feature | Standard claim | Complex claim |
Threshold | Up to $750,000 | More than $750,000 |
Adjudication response period | 10 business days after receiving the s 79(4) documents (adjudication application and any accompanying submissions), or 7 business days after receiving notice of the adjudicator's acceptance (later applies) | 15 business days from application receipt, or 12 days from acceptance notice (later applies) |
Extension of time for response | Not available | Up to 15 additional business days (on written application made within the later of 5 business days after receiving the s79(4) documents or 2 business days after receiving notice of the adjudicator's acceptance) |
Adjudicator's decision period | 10 business days after response date | 15 business days after response date |
Adjudicator's unilateral extension | Not available | Up to 5 additional business days |
What Can Be Included in a Response?
A respondent cannot use the adjudication response to introduce materially new reasons for withholding payment that were not first stated in the payment schedule: see ss 82(4) and 88(3) of the BIF Act.
That rule is fundamental.
The Golden Rule: You Cannot Raise New Reasons
A respondent may:
expand on reasons already given in the payment schedule;
support those reasons with evidence; and
explain the existing position in more detail.
A respondent may not:
use the response to introduce materially new reasons for withholding payment that were omitted from the payment schedule.
This is why the payment schedule matters so much. A weak or vague schedule can lock the respondent into a weak adjudication position later.
Set-Off and Cross-Claims in Adjudication
A respondent may seek to reduce the adjudicated amount by raising a set-off or cross-claim in the payment schedule and adjudication response. However, the same confinement principle applies: the set-off or cross-claim must be raised as a reason for withholding payment in the payment schedule. A respondent who attempts to introduce a set-off or cross-claim for the first time in the adjudication response, without having identified it as a reason for withholding in the schedule, will face the same restriction under sections 82(4) and 88(3) of the BIF Act.
The scope of what can properly be raised as a set-off in adjudication is a matter of ongoing debate. Queensland authority indicates that an adjudicator may consider a set-off where it is raised as a reason for withholding payment in the payment schedule, but the extent to which an adjudicator can determine a cross-claim that goes beyond the payment claim itself — for example, a claim for liquidated damages or delay costs — depends on the statutory framework and the way the issue is presented. The position should be checked against the current authorities.
In practical terms, a respondent who intends to rely on a set-off should articulate it clearly and with sufficient detail in the payment schedule, including a quantified amount and the basis on which it is said to arise. A bare assertion of set-off without quantification or explanation is unlikely to give the adjudicator a proper basis for exercising the valuation function.
Case law in practice
Queensland courts have confirmed that section 82(4) of the BIF Act restricts the adjudication response to submissions relating to reasons for withholding payment that were included in the payment schedule. Where a respondent attempted to raise new reasons in its adjudication response that had not been articulated in the payment schedule, the adjudicator was required to disregard those submissions, and a determination that failed to apply that restriction was exposed to judicial review. The restriction applies even where the new reasons might have been compelling on their merits. The payment schedule is the respondent's single opportunity to define its position, and it must be used carefully.
If you are the claimant
Read the adjudication response carefully against the payment schedule. If the respondent has introduced materially new reasons for withholding payment that were not stated in the schedule, identify those in any permitted reply or further submission — the adjudicator is required to disregard them under ss 82(4) and 88(3) of the BIF Act.
If you are the respondent
The adjudication response is not a second chance to rewrite the payment schedule. It is an opportunity to expand on, support with evidence, and explain in detail the reasons you already articulated. If a reason was not in the schedule, it cannot be in the response. Prepare the response with the schedule open beside it at all times.
If you are the principal or head contractor
If your payment schedule was prepared internally without legal input, have it reviewed before the adjudication response is drafted. A vague or incomplete schedule may have already constrained the case you can run, and understanding those constraints early will avoid wasted effort on arguments the adjudicator must disregard.
What if No Payment Schedule Was Served?
If the respondent failed to serve a valid payment schedule when required, that failure has severe and immediate downstream consequences. Under s 82(2) of the BIF Act, a respondent who failed to give a payment schedule as required under s 76 must not give an adjudication response. The section is expressed in mandatory terms.
This is one of the clearest examples of the BIF Act’s discipline: parties are expected to engage properly when the payment claim arrives, not wait and attempt to repair the position later.
Stage 5: The Adjudicator’s Decision
Once the application and any permitted response are before the adjudicator, the adjudicator must determine the application within the statutory timeframe.
The decision matters because it creates an immediately enforceable interim payment outcome unless successfully challenged on narrow grounds.
The Adjudicator’s Role and Powers
An adjudicator’s task is statutory and confined. The adjudicator’s consideration is confined to the material the Act permits, principally under s 88 of the BIF Act, including: the relevant legislation, the construction contract, the payment claim, the payment schedule, the adjudication application, the adjudication response, and any permitted additional submissions or material.
An adjudicator is not conducting a full trial. The adjudicator is performing a tightly confined statutory function.
That is why the distinction between jurisdictional error and ordinary error matters. An adjudicator can be wrong on the facts or even wrong on some legal reasoning and still produce a binding determination, provided the adjudicator remained within power.
How Construction Work Is Valued in Adjudication
Valuation is the practical core of most adjudication disputes. The adjudicator must determine the amount of the progress payment, if any, to be paid. How that determination is reached depends on whether the construction contract provides a mechanism for valuing the work claimed.
Contract-first valuation
Where the contract provides for how construction work is to be valued, the adjudicator must ordinarily value the work in accordance with that mechanism: see s 72(1)(a) of the BIF Act. This might be a schedule of rates, a bill of quantities, a lump sum allocation with milestone payments, or a formula tied to measured progress. The same principle applies to related goods and services. If the contract provides a valuation mechanism, the adjudicator applies it. The parties' dispute is then about whether the contract mechanism has been applied correctly — not about what the general market value of the work might be.
A common and hotly contested preliminary issue is whether the contract actually does provide a complete valuation mechanism. Parties frequently dispute whether a particular schedule, rate card, or clause is intended to govern valuation of the specific work in issue. Resolving that question can itself determine the outcome of the adjudication.
Statutory fallback valuation
Where the contract does not provide for how construction work is to be valued — or where there is no contract, or the applicable contractual term is void — the BIF Act specifies what the adjudicator must have regard to. Under s 72(1)(b), the adjudicator must have regard to: the contract price for the work; any other rates or prices stated in the contract; any variation agreed by the parties that adjusts the contract price or a rate or price by a specific amount; and, if any of the work is defective, the estimated cost of rectifying the defect.
Agreed variations
Agreed variations are included in the statutory fallback framework. Disputed variations — that is, variations that one party claims are instructed and the other disputes — require the adjudicator to determine whether the variation was in fact agreed and whether it adjusts the contract price. That assessment requires close engagement with the correspondence, instructions, and contemporaneous records.
Defective work and estimated rectification cost
Where a respondent raises defects in the adjudication, the adjudicator must engage with that issue in carrying out the valuation exercise required by s 72. Queensland authority indicates that where a contract does not provide how work is to be valued, an adjudicator who accepts the existence of relevant defects but fails to estimate rectification cost and factor that estimate into the valuation may expose the determination to jurisdictional error arguments, depending on the circumstances based on section 72(1)(b)(iv). If defects are sufficiently proved and the statutory valuation pathway applies, the respondent is entitled to have the adjudicator consider the estimated rectification cost in arriving at the adjudicated amount.
This is why a payment schedule that raises defects must do more than simply assert they exist. It must provide enough information — ideally a quantified estimate with supporting material — to give the adjudicator a proper basis for exercising the section 72 valuation function. A vague reference to "defective work" without any quantification gives the adjudicator little to work with and may result in minimal or no set-off.
Why valuation reasoning matters for challenge arguments
An adjudicator who fails to undertake the valuation exercise required by the Act — by ignoring the applicable contractual mechanism, declining to estimate rectification costs, or simply not engaging with a materially significant item — may have failed to perform a central statutory duty. That failure can support a jurisdictional error argument on judicial review. Valuation is not a peripheral concern: it is the core statutory task.
Valuation Framework Table
Situation | Governing approach |
Contract provides valuation mechanism | Adjudicator must value work in accordance with the contract |
Contract does not provide valuation mechanism | Adjudicator must have regard to: contract price, rates/prices in contract, agreed variations, and estimated defect rectification cost |
Defective work raised by respondent | Adjudicator must estimate rectification cost and apply it as a deduction |
Disputed variation (not agreed) | Adjudicator must determine whether variation was agreed before valuing it |
Agreed variation adjusting price by specific amount | Included in statutory fallback valuation framework |
Retention and Part 4A of the QBCC Act
Retention is one of the most frequently contested issues in Queensland adjudication. Part 4A of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) directly regulates retention in building contracts, including limits on the amount that may be retained, the timing and conditions for release, and restrictions on the use of retention funds. An adjudicator is expressly permitted to have regard to Part 4A of the QBCC Act under section 88(2)(a) of the BIF Act, and disputes about whether retention has been lawfully withheld, whether it is due for release, or whether the contractual retention regime complies with the statutory limits frequently arise in adjudication.
Where a respondent seeks to withhold retention from a progress payment, the payment schedule should identify the amount retained and the contractual or statutory basis for the retention. Where the claimant disputes the retention, the adjudication application should address whether the retention complies with Part 4A and whether the conditions for release have been met.
Because Part 4A imposes mandatory requirements that override inconsistent contractual terms, a contractual retention clause that exceeds the statutory limits or that fails to comply with the prescribed release conditions may be void to the extent of the inconsistency. Parties should check the retention provisions in their contract against the current requirements of Part 4A before relying on a retention position in adjudication.
What an Adjudicator Can Consider — and What Is Outside the Lane
One of the most important and most litigated aspects of Queensland adjudication is the confined scope of what an adjudicator is permitted to consider. The adjudicator is not a court. The adjudicator is not conducting a general inquiry into the merits of the parties' contractual relationship. The adjudicator is performing a tightly defined statutory function, and the limits of that function are prescribed by section 88 of the BIF Act.
The confined statutory role
In deciding an adjudication application, an adjudicator may only have regard to the following material:
the relevant provisions of the BIF Act and Part 4A of the QBCC Act (which regulates contractual terms, including limits on retention and set-offs);
the clauses of the relevant construction contract;
the payment claim to which the application relates, together with any submissions and supporting documents properly made by the claimant;
the payment schedule (if any) to which the application relates, together with any submissions and supporting documents properly made by the respondent;
the results of any inspection carried out by the adjudicator of any matter to which the claim relates.
Under s 84(2)(b) of the BIF Act, the adjudicator may ask for further written submissions from either party and must give the other party an opportunity to comment on those submissions. This is a procedural power that sits outside s 88(2); it is not itself one of the matters listed in s 88(2). Submissions obtained through that process, once properly made, would ordinarily fall within s 88(2)(c) or (d) as submissions properly made by the claimant or respondent in support of their respective positions. The adjudicator may also call a conference of the parties under s 84(2)(d). In practice, the most common exercise of these procedural powers is a request for further written submissions on a specific issue.
What falls outside the lane
Several things the parties might wish to place before the adjudicator are simply outside the permissible scope. The adjudicator must not consider reasons for withholding payment that were not included in the payment schedule: see s 88(3) of the BIF Act. The adjudicator also cannot base a determination on a non-contractual document unless the estoppel arising from that document is framed so as to estop a party from denying that the construction contract itself was varied or amended to incorporate that document. In John Holland Queensland Pty Ltd v SecureFence Pty Ltd [2024] QSC 290, the Queensland Supreme Court treated the adjudicator's reliance on an estoppel arising from a document said not to form part of the subcontract as a jurisdictional error in the circumstances of that case. The decision illustrates the need for careful attention to the statutory limits on what may found an entitlement in adjudication.
The significance for jurisdictional error arguments
The confined scope of permissible consideration is directly relevant to judicial review. Where an adjudicator considers material that falls outside section 88(2), or fails to consider material that falls within it, the adjudicator may have gone beyond power or failed to perform a required statutory duty. Either may constitute jurisdictional error and expose the decision, or part of it, to being declared void. Equally, where an adjudicator fails to genuinely engage with the parties' submissions — not merely reading them but actually grappling with and forming a view on the issues raised — Queensland courts have found that to constitute a failure to comply with the essential requirements of the Act.
Case law in practice
Queensland authority indicates that the confined statutory role of an adjudicator is not merely procedural. It defines the limits of the adjudicator's power. An adjudicator who goes beyond section 88(2), or who fails to deal with material the Act requires to be considered, may produce a determination that is vulnerable to challenge. The lesson for parties preparing adjudication applications and responses is that the framing of the claim and the reasons in the schedule must be crafted with section 88 in mind from the outset.
Adjudicator Consideration Matrix
Material | Can adjudicator consider? |
BIF Act provisions | Yes |
QBCC Act Part 4A | Yes |
Construction contract clauses | Yes |
Payment claim and claimant's submissions | Yes |
Payment schedule and respondent's submissions | Yes |
Adjudicator's own inspection results | Yes |
Further submissions requested by adjudicator (power under s 84(2)(b), separate from s 88(2)) | Yes — adjudicator may request under s 84(2)(b) and must give the other party an opportunity to comment; once properly made, those submissions are considered under s 88(2)(c) or (d) |
New reasons for withholding payment not in payment schedule | No — prohibited by s 88(3) |
Non-contractual documents (e.g. side agreements, estoppel-based entitlements) | Generally no, unless estoppel goes to the contract being varied to include the document |
General correspondence or meeting notes not submitted as part of the adjudication | No |
Timeframe for the Decision
The adjudicator must decide the application within a strict statutory period calculated from the "response date." The response date is defined conditionally by s 85(2) of the BIF Act: if the respondent gives an adjudication response, the response date is the day the adjudicator actually receives it; if the respondent is prevented from giving a response under s 82(2) (because no payment schedule was served), the response date is the last day on which the respondent could otherwise have responded; and in any other case, the response date is the last day on which the respondent was entitled to give the response under s 83. In practice, this means that if the respondent gives its response early, the adjudicator's clock starts from that earlier date — the adjudicator is not automatically given the full response window if the respondent responds sooner.
For a standard payment claim, the adjudicator must decide within 10 business days after the response date. For a complex payment claim, the adjudicator has 15 business days after the response date. These periods can be extended by written agreement of both parties, whether reached before or after the original decision period expires.
For complex payment claims, the adjudicator also has an additional unilateral extension power: the adjudicator may extend the decision period by up to 5 additional business days, without the parties' consent. The adjudicator must separately notify the QBCC Adjudication Registrar of the extension within 4 business days after deciding to exercise that power: see s 86(4) of the BIF Act.
A decision delivered outside the applicable statutory period — whether the standard 10 days, the complex 15 days, or any agreed or adjudicator-extended period — is likely to be invalid and unenforceable. Queensland courts have confirmed this position. The consequences can be severe: a claimant who has been awaiting a determination may find the entire application must be re-lodged, subject to the available time limits, if any remain.
The practical lesson is that parties should monitor the expected decision date carefully. Where a decision has not arrived within the applicable window, specialist advice should be sought immediately.
What the Decision Will Contain
A written adjudication decision will usually identify:
the adjudicated amount;
the date for payment;
any interest payable; and
the allocation of adjudication fees.
Unless the statutory position allows otherwise, it will also provide reasons.
The decision then becomes the foundation for the next stage: payment, enforcement, or attempted challenge.
If you are the claimant
Monitor the expected decision date carefully. If the adjudicator's decision has not arrived within the applicable statutory period, seek specialist advice immediately — a late decision may be void. Once the decision issues, check the adjudicated amount, the payment date, and the interest calculation before moving to enforcement.
If you are the respondent
When the decision arrives, identify the payment deadline immediately. The obligation to pay is not suspended simply because you disagree with the outcome or intend to challenge it. If you are considering judicial review, obtain advice on whether a stay of enforcement is available and realistic before the payment deadline expires.
If you are the principal or head contractor
An adjudication decision against you or a party in your contractual chain can have immediate downstream consequences, including payment withholding requests that freeze money you owe or are owed. Take advice promptly on the decision's implications for your payment flows and any enforcement steps that may follow.
Stage 6: After the Decision: Payment and Enforcement
An adjudicator's decision ends the adjudication stage, but not the dispute's commercial consequences. Once the decision is made, the immediate questions become how to enforce the adjudication decision and recover the adjudicated amount.
This is where the BIF Act's interim payment philosophy has practical force. The point is not merely to produce a legal ruling. It is to produce a payment outcome that can be enforced — and the Act provides a range of mechanisms to do so.
Paying the Adjudicated Amount
A respondent required to pay an adjudicated amount must generally do so within five business days after receiving the adjudicator’s decision, unless a later date is specified.
That obligation is not suspended simply because the respondent disagrees with the outcome or intends to challenge it.
(See s 90 of the BIF Act.)
What if the Respondent Doesn’t Pay?
If payment of the adjudicated amount is not made on time, the claimant has a range of statutory enforcement tools available.
Adjudication certificate and court filing
Under section 91 of the BIF Act, the QBCC Adjudication Registrar must issue the claimant an adjudication certificate within 5 business days after receiving a copy of the adjudicator’s decision, subject to the Act. Under section 93 of the BIF Act, that certificate may be filed in a court of competent jurisdiction as a judgment for a debt. The claimant can then seek to enforce the filed certificate using the usual judgment enforcement mechanisms available in Queensland, including enforcement warrants, seizure of assets, and garnishee orders against third-party debtors, subject to any stay or other relief granted by the court.
Filing an adjudication certificate as a court judgment is faster than commencing fresh litigation. It does not involve a fresh merits determination of the payment dispute — the adjudicator has already determined the amount payable, and the court filing process is ordinarily straightforward.
However, a respondent who disputes the adjudication on jurisdictional error grounds may seek to restrain enforcement pending a judicial review application, and Queensland courts have occasionally granted stays in appropriate circumstances.
The test for a stay involves the court weighing factors including whether there is a seriously arguable case for jurisdictional error, the balance of convenience between the parties, and the risk of injustice if the stay is granted or refused. A stay is not automatic, and the respondent bears the onus of demonstrating why enforcement should be restrained. Where a stay is refused, enforcement may proceed notwithstanding the pending judicial review. The claimant should be aware that a stay application can be made at short notice and should be prepared to oppose it promptly.
Payment withholding request
Where the respondent is itself owed money from a party higher in the contractual chain — for example, a head contractor who owes the subcontractor an adjudicated amount but is itself owed retention or progress payments from the principal — the claimant can serve a payment withholding request on the party higher in the chain. That higher-level party is then required, subject to the Act, to withhold from any amount payable to the respondent a sum sufficient to satisfy the adjudicated amount. This mechanism effectively freezes money in the chain and can create significant commercial pressure on a non-paying respondent.
(The details should be checked against the BIF Act provisions dealing with payment withholding requests before any request is issued.)
Statutory demand caution
Serving a statutory demand under the Corporations Act 2001 (Cth) as an enforcement step following an unpaid adjudication determination is available in principle but carries risk. A respondent who advances a genuine dispute or offsetting claim directed to the statutory demand, including one founded on an arguable challenge to the adjudication determination, may apply to set the demand aside, which can result in costly interlocutory litigation and delay recovery. In cases where a respondent is likely to contest the determination's validity, commencing enforcement via the adjudication certificate and court filing pathway is generally more efficient.
The distinction between enforcement and final rights
Enforcing an adjudication determination does not finally resolve all the parties' contractual rights. The BIF Act's regime is interim. A respondent who pays an adjudicated amount may still pursue the claimant in litigation or arbitration for repayment or damages arising from the underlying dispute, subject to applicable contractual and limitation period constraints. Payment of the adjudicated amount is not an admission of the substantive correctness of the determination.
Court Recovery, Warning Notices, and Debt Pathways
Adjudication is not the only statutory remedy available to a claimant seeking to recover money owed for construction work. The BIF Act also provides a parallel court recovery pathway that allows a claimant to recover the unpaid amount as a statutory debt. Understanding how these two pathways interact — and when each is strategically preferable — is essential for claimants managing live building or construction payment disputes.
Recovery as a statutory debt
Under section 78(2)(a) of the BIF Act, where a respondent fails to pay the amount owed to the claimant by the due date for payment, the claimant may recover the unpaid portion as a debt owing to the claimant in a court of competent jurisdiction. The "amount owed" for this purpose is: the full amount claimed in the payment claim (if no payment schedule was served); or the scheduled amount stated in the payment schedule (if a schedule was served but the scheduled amount was not paid). The right to court recovery arises upon the respondent's failure to pay by the due date — it is not conditional on having first attempted adjudication.
Where no payment schedule was served: the statutory bar on defences
Where the respondent failed to give a payment schedule within the required time, the consequences of court recovery are particularly severe for the respondent. Section 100(3) of the BIF Act provides that in all proceedings brought by a claimant to recover a debt under s 78(2)(a), the respondent is not entitled to bring any counterclaim or raise any defence in relation to matters arising under the construction contract, subject to the scope of s 100 and the issues properly open in the proceeding.
On the article's reading of section 100(3), this bar applies in all proceedings to recover a debt under section 78(2)(a), whether or not a payment schedule was served. The scope and application of section 100(3) should be checked carefully against the current authorities. The bar is most consequential where no payment schedule was served, because in that scenario the recoverable amount is the full claimed amount and the respondent has no ability to contest it on the merits. Section 100(3) specifically bars the respondent from bringing any counterclaim or raising any defence in relation to matters arising under the construction contract; set-off arguments, to the extent they constitute a defence or counterclaim, would fall within that statutory bar. The court's role in those circumstances is largely confirmatory of the statutory preconditions: it considers whether the statutory preconditions have been met and, if so, may enter judgment accordingly.
The warning notice requirement
Before commencing court proceedings to recover a debt under the BIF Act, the claimant must first give the respondent a warning notice in the approved form (Form S99) under section 99 of the Act. The warning notice requirements are as follows:
the notice must be in the approved QBCC form;
it must be given after the due date for payment has passed;
it must be given to the respondent no later than 30 business days after the due date for payment; and
the claimant must wait at least 5 business days after giving the warning notice before commencing proceedings.
The warning notice deadline is strict. A claimant who does not give the warning notice within 30 business days of the due date for payment will generally lose the right to pursue the statutory debt recovery pathway under the Act for that payment claim. This is another illustration of how the due date for payment drives every downstream calculation — a miscalculated due date means a miscalculated warning notice window.
Importantly, giving a warning notice does not obligate the claimant to actually start court proceedings. The notice preserves the option. The claimant may instead choose to adjudicate, or to take some other step. The notice simply keeps the court door open.
(See s 99 of the BIF Act and the current approved QBCC Form S99.)
Relationship between court recovery and adjudication
Court recovery and adjudication are alternative statutory pathways rather than mandatory sequential steps. A claimant may pursue either pathway, but should obtain advice before attempting to run both in parallel for the same payment claim.
The strategic choice between them involves a number of considerations:
Court recovery is typically faster and cheaper where no payment schedule was served, because the respondent is barred from raising defences and the court simply confirms the debt.
Adjudication is generally preferable where the works are still ongoing, because an adjudicator will value the claim and that valuation may bind subsequent adjudicators in later payment cycles, subject to the Act and the issues then arising — meaning the outcome has continuing relevance to later payment cycles.
Court recovery is subject to the warning notice requirement, which adds a mandatory waiting period of at least 5 business days after notice is given.
Adjudication, once commenced, moves on its own timetable and does not require a pre-lodgement notice.
Adjudication vs Debt Recovery — Key Comparison
Factor | Adjudication | Court debt recovery |
Pre-condition | Valid payment claim; applicable trigger event | Valid payment claim; warning notice served on time |
Respondent's right to raise defences | Preserved to extent stated in payment schedule | Barred entirely if no payment schedule was served |
Speed | Fast statutory timetable | Depends on court; summary judgment possible |
Valuation | Adjudicator values the work | Court does not value; confirms statutory debt |
Ongoing works | Valuation binding on later adjudicators | Judgment may effectively be reversed by later payment cycles |
Strategic best use | Ongoing project; disputed work value; payment schedule served | Completed works; no payment schedule served; clean debt |
Suspending Work for Non-Payment
Where a contractor or subcontractor has not been paid by the due date, the BIF Act gives the claimant a statutory right to suspend work for non-payment. That right extends to suspending construction work or the supply of related goods and services. This is a powerful commercial remedy. It is also one that must be exercised strictly and carefully, because a wrongful suspension creates its own liability exposure.
(The right arises under s 98, read with s 78(3), of the BIF Act.)
The required notice
Before suspending work, the claimant must give the respondent a written notice of its intention to suspend. Under section 78(3) and section 98 of the BIF Act, that notice must state that it is made under the Act. No work or supply may be suspended until at least 2 business days after the notice is given. The 2 business day waiting period is mandatory. A claimant who suspends before it expires is unlikely to have the protection of the statutory right and may face a claim for wrongful suspension.
Duration of the suspension right
Once lawfully commenced, the suspension may continue until the outstanding amount is paid. Under section 98(2) of the BIF Act, the right to suspend ceases at the end of 3 business days immediately following the date on which the claimant receives the outstanding payment. The claimant should recommence work within that 3 business day window once payment is received, consistently with s 98(2) of the BIF Act.
Interaction with contractual rights
A claimant who lawfully suspends work under the BIF Act is protected from contractual consequences that would otherwise arise from the suspension. The Act provides that the claimant is not in breach of the construction contract by reason of the suspension, and is not liable in damages for loss or delay caused to the respondent as a result. However, this protection only applies where the suspension is lawfully carried out — that is, where the right to suspend has properly arisen, the notice has been given, and the waiting period has been observed.
Risks of non-compliant suspension
A suspension that does not comply with the statutory conditions — for example, because the notice was not given, the waiting period was not observed, or the right to suspend had not yet arisen — will not have the protection of the Act. In those circumstances, the claimant may be in breach of the construction contract, potentially exposing it to a termination for cause by the respondent or a damages claim. The practical lesson is that suspension should be approached methodically: confirm the due date has passed, give the compliant notice, wait the full 2 business days, and document the timing of every step.
Practical Risk Point
If you are considering suspension, confirm:
(a) the correct due date for payment has passed;
(b) a written notice in compliant form has been given and states it is made under the Act;
(c) at least 2 business days have elapsed since the notice was given before work is stopped; and
(d) evidence of the notice and the timeline is preserved. Do not suspend prematurely.
Challenging an Adjudicator’s Decision: Judicial Review
There is no general merits appeal from an adjudicator’s decision under the BIF Act.
That means a dissatisfied party cannot simply ask the court to decide the payment dispute again because it believes the adjudicator got the facts or law wrong.
The challenge pathway is much narrower. In substance, it is ordinarily confined to judicial review or related supervisory relief for jurisdictional error and related legality issues.
(The court’s supervisory role is directed to legality, not to a general rehearing on the merits.)
The High Bar for a Court Challenge
Judicial review is not a rehearing. The court is not deciding whether the adjudicator made the best decision. The court is deciding whether the adjudicator acted within the power conferred by the Act and according to law.
That makes judicial review a high-threshold, high-risk, and often high-cost remedy. It should not be treated as a routine post-loss tactic.
Understanding Jurisdictional Error
Jurisdictional error may occur where the adjudicator goes beyond power, fails to perform a central statutory duty, or proceeds in a way the law does not permit.
Examples can include:
deciding matters not properly referred;
denying natural justice;
failing to consider matters the Act requires to be considered; or
proceeding where a jurisdictional precondition, such as a valid claim or valid application, was absent.
(These are examples only. Whether a particular error is jurisdictional depends on the statutory requirement said to have been breached and the way the issue arose in the particular matter.)
Jurisdictional Error vs Error of Fact/Law
Issue | Jurisdictional error | Error within jurisdiction |
Nature | Goes to power or legality | Mistake made while validly exercising power |
Reviewability | Potentially reviewable by court | Usually not enough on its own |
Example | No valid payment claim; denial of natural justice; deciding matter not referred | Wrong valuation finding; wrong factual preference; arguable contractual interpretation error |
Consequence | Decision or part of it may be declared void | Decision may still remain binding |
This distinction is fundamental. Not every legal or factual mistake by an adjudicator invalidates the decision.
If you are the claimant
A respondent's threat of judicial review is a standard tactic and should not automatically deter enforcement. Adjudication certificates should be filed and enforced while a judicial review challenge is pending, unless the court grants a stay — although the availability of a stay will depend on the circumstances of the case and is passingly rare.
If you are the respondent
Judicial review is an expensive, high-risk remedy. Before committing to that course, obtain a frank assessment from a construction lawyer experienced in adjudication challenges as to whether a genuine jurisdictional error occurred — not merely whether the adjudicator's conclusion was wrong. An error of fact or law within jurisdiction will not succeed, and an unsuccessful judicial review application may result in costs orders in addition to the adjudicated amount.
If you are the principal or head contractor
Where an adjudication determination is made against you and enforcement is threatened, take immediate specialist advice. The window for strategic responses — including stays, judicial review, and parallel recovery steps — is short.
Case law in practice
Recent Queensland decisions have reinforced the narrow grounds for challenging an adjudication determination. In John Holland Queensland Pty Ltd v SecureFence Pty Ltd [2024] QSC 290, the court treated the adjudicator's reliance on an estoppel arising from a non-contractual document as a jurisdictional error in the circumstances of that case. The lesson is that jurisdictional error is a real basis for challenge, but the threshold remains high. Ordinary mistakes of fact or law, even arguable ones, will not ordinarily suffice.
The Practical Steps of a Judicial Review Application
A challenge to the validity of an adjudicator’s decision is ordinarily brought in the Supreme Court of Queensland by originating process supported by evidence.
A judicial review application should be commenced promptly. While there is no fixed statutory limitation period equivalent to the adjudication application deadlines under section 79, delay in bringing the application can be a factor the court considers in deciding whether to grant relief. A respondent who is aware of a potential jurisdictional error but waits weeks or months before commencing proceedings may find that the delay itself weighs against the grant of discretionary relief, particularly where the claimant has taken enforcement steps in reliance on the determination in the meantime.
If the court finds jurisdictional error, it may declare all or part of the determination void, and in an appropriate case may grant related relief. In some cases, the court may sever the invalid part from the valid part, leaving some portion of the adjudicated amount intact.
That means judicial review is not simply about whether the respondent “wins” or “loses” the challenge. It is often a more complex commercial decision involving payment exposure, enforcement risk, timing, and litigation cost.
For that reason, judicial review should be approached quickly and strategically, and only with specialist advice.
Practical Closing Observations
Queensland adjudication is powerful because it is fast, technical, and commercially consequential. That is also why procedural accuracy matters so much.
For claimants, the recurring risks are:
invalid claims;
premature claims;
service defects;
missed application deadlines; and
poor application preparation.
For respondents, the recurring risks are:
late schedules;
vague schedules;
assuming commercial correspondence is enough;
trying to raise new reasons too late; and
underestimating the speed and rigidity of the process.
The outcome of any construction payment dispute under the BIF Act is shaped by the quality of the payment claim, the quality of the payment schedule, and whether the parties identified and complied with the critical statutory deadlines.
Whether the dispute concerns a progress payment, a final payment, retention, or variations, the same principle applies: if adjudication is in prospect, urgency and precision matter more than volume and rhetoric.
How Merlo Construction Lawyers Can Help
If you are facing a construction payment dispute in Queensland — whether you need to make a payment claim, respond to one, apply for adjudication, defend an adjudication, enforce a decision, or challenge one — our construction lawyers can help. We act for contractors, subcontractors, suppliers, principals, and head contractors across Queensland on security of payment matters under the BIF Act.
FAQs
What is security of payment adjudication in Queensland?
It is a fast statutory process under the BIF Act for resolving payment disputes in the building and construction industry on an interim basis.
Does the BIF Act apply to every construction contract?
No. It applies only where the contract and the work fall within the statutory scope, and the Act also contains important exclusions.
Can I make a payment claim without the correct QBCC licence?
That may be a threshold problem. If the work required a licence and the claimant did not hold the appropriate licence, entitlement to payment may be defeated at the threshold.
What is a reference date?
It is the point at which a right to claim a progress payment arises, usually determined first by the contract and, if necessary, by the default provisions of the Act.
What happens if I serve a payment claim too early?
A prematurely served claim is invalid and fails a statutory precondition to adjudication: see generally ss 70 and 75 of the BIF Act.
What makes a payment claim valid?
In substance, it must identify the work or related goods and services, state the claimed amount, and request payment, while also being validly served and made on or after a valid reference date.
How much detail does a payment claim need?
Enough detail to allow the respondent to understand what is being claimed and how to respond. The required detail depends on the context.
How long does a respondent have to serve a payment schedule?
Generally, the earlier of the contractual period or 15 business days after the claim is given.
What happens if no payment schedule is served?
The respondent may face severe statutory consequences, including immediate liability exposure and major restrictions on its downstream position.
How do I work out the due date for payment?
Start with the construction contract. If the contract specifies when a progress payment becomes due, that date generally governs, subject to the QBCC Act maximum payment periods — 15 business days for head contracts and 25 business days for subcontracts. If the contractual term exceeds those caps, it is void and the BIF Act's 10 business day statutory default applies. If the contract is silent on when payment is due, the 10 business day default also applies. "Pay when paid" clauses have no effect. The due date controls almost every downstream deadline in the Act, so it must be identified correctly before calculating anything else.
Can I serve BIF Act documents by email?
That depends on whether the contract authorises email service. If it does, email to the contractually authorised address is generally a low-risk method, provided the document itself is attached directly and delivery evidence is retained. If the contract does not authorise email, relying on email alone carries material validity risk — Queensland authority has not clearly established that email satisfies the Acts Interpretation Act 1954 (Qld) fallback. Service by Dropbox, hyperlink, or any retrieval-only method carries very high risk regardless of the contract.
How is retention treated in adjudication?
Retention is regulated by Part 4A of the QBCC Act, which imposes mandatory limits on the amount that may be retained, the conditions for release, and the use of retention funds. An adjudicator is expressly permitted to have regard to Part 4A under section 88(2)(a) of the BIF Act. Where a respondent seeks to withhold retention, the basis for doing so should be clearly stated in the payment schedule. A contractual retention clause that exceeds the statutory limits may be void to the extent of the inconsistency. The retention provisions in any contract should be checked against the current requirements of Part 4A.
Can a respondent raise new reasons in the adjudication response?
Generally no. The response cannot be used to introduce materially new reasons for withholding payment that were not first stated in the payment schedule: see ss 82(4) and 88(3) of the BIF Act.
How long do I have to apply for adjudication?
It depends on the scenario. Different statutory triggers apply depending on whether a schedule was served, whether it scheduled less than the claimed amount, and whether payment was made by the due date.
Why is section 79 so important?
Because it governs the adjudication application timing pathways, and a late application will ordinarily be invalid.
Do I need to use the QBCC approved form?
Yes. Under s 79(2)(a) the application must be made in the approved form, and applicants should download the current version directly from the QBCC website before filing.
Do I have to serve the adjudication application on the respondent as well as lodge it with the QBCC?
Yes. The respondent must receive a complete copy of the adjudication application and its supporting material.
How quickly does an adjudicator decide?
Usually very quickly. The statutory timeframes are short and depend on the nature of the claim and applicable timing regime.
What does an adjudicator’s decision include?
Usually the adjudicated amount, the due date for payment, any interest payable, fee allocation, and reasons.
What happens if the adjudicated amount is not paid?
The claimant may pursue enforcement mechanisms including adjudication certificates and other statutory recovery tools.
Can work be suspended for non-payment of the adjudicated amount?
Potentially yes, but only if the statutory conditions and notice requirements are complied with strictly.
Can an adjudicator’s decision be appealed?
Not on the merits in the ordinary sense. The challenge pathway is generally limited to judicial review, or related supervisory relief, on narrow legal grounds, chiefly jurisdictional error.
What is jurisdictional error in adjudication?
It is an error that goes to the adjudicator’s power or legality, such as deciding matters outside the referral, denying natural justice, or proceeding without a valid jurisdictional foundation.
Can defective work be raised as a defence in adjudication?
Yes, but only if the defects are raised as a reason for withholding payment in the payment schedule. The respondent must identify the defective work specifically and, ideally, provide a quantified estimate of rectification cost. A vague reference to "defective work" without supporting detail gives the adjudicator little to work with and may result in minimal or no deduction.
Do I need a construction lawyer for adjudication in Queensland?
Adjudication under the BIF Act is technical, deadline-driven, and procedurally unforgiving. While the Act does not require legal representation, the consequences of a missed deadline, a defective payment claim, or an inadequate payment schedule can be severe and often irreversible. A construction lawyer experienced in security of payment adjudication can help ensure compliance with the Act's requirements and protect your position at every stage.
Disclaimer
This guide provides general information only. It does not constitute legal advice and should not be relied on as a substitute for advice on specific facts, contracts, claims, or disputes. Adjudication under the BIF Act is technical, deadline-driven, and highly fact-sensitive. If you are preparing a payment claim, responding to one, considering adjudication, or challenging an adjudication decision, you should obtain advice from a construction lawyer in Queensland with experience in security of payment adjudication tailored to your circumstances. Merlo Construction Lawyers advise on all aspects of adjudication under the BIF Act. Contact us for advice specific to your matter.
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