Security of Payment: Should You Grant the Adjudicator's Section 86 Extension on a Pipeline Claim?

Key Takeaways

• Late adjudication decisions under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act) may be deemed void for jurisdictional error, potentially exposing pipeline contractors to significant cash flow delays.

• Under section 86 of the BIF Act, an adjudicator’s decision timeframe for a standard payment claim can only be extended if both the claimant and the respondent agree in writing. For a complex payment claim, however, the adjudicator gains an automatic further 5 business days where, in their opinion, the parties have failed to reach that agreement.

• If you refuse an extension and the adjudicator defaults under section 85 of the BIF Act, you are likely required to act within a strict 5-business-day window under s94 to request a new adjudicator or risk losing critical procedural rights.

Payroll is due next week, and the $900,000 progress claim you are counting on to cover it has just stalled. One day before the adjudicator's decision is due, an email lands in your inbox: the adjudicator wants a five-business-day extension to work through the respondent's technical reports. Those reports arrived as a 600-page payment schedule—the head contractor's answer to your claim on a trunk sewer main installation, alleging joint displacement and bedding sand compaction failures.

You face a hard tactical choice, and it turns on whether your claim is standard or complex. On a standard claim, refusing means the application likely fails on time and you must restart the entire process; on a complex claim, refusing does not stop the clock cleanly, because the adjudicator picks up an automatic further 5 business days regardless of your consent. Agreeing, on either type of claim, hands the respondent exactly the delay they may be angling for. This article explains the strict statutory deadlines governing adjudicators in Queensland, the strategic risks of granting or denying an extension, and the exact procedural steps you must take to protect your payment rights if the clock runs out.

Evaluating the Adjudicator’s Last-Minute Time Extension Request

The deadline is ticking, and the request for more time shifts the strategic burden onto your shoulders. This section breaks down the rigid statutory limits adjudicators operate under and outlines the exact procedural mechanism required to grant a valid extension, allowing you to weigh the commercial cost of delay against the legal risk of a void decision.

Separating the Adjudicator’s Statutory Deadlines from Section 86 Mutual Extensions

The BIF Act imposes unforgiving deadlines on adjudication in Queensland. Under section 85 of the BIF Act, an adjudicator must decide an adjudication application no later than 10 business days after the response date for a standard payment claim, or 15 business days for a complex payment claim. These deadlines are not merely administrative targets; they are strict jurisdictional limits. Miss them and the adjudicator loses the power to decide your claim at all. An adjudicator cannot grant themselves an extension to sift through voluminous documents or balance their caseload.

In Queensland, an adjudicator must deliver their decision within 10 business days for standard claims and 15 business days for complex claims. For a standard claim, that period can only be extended if both parties formally agree in writing. For a complex claim, the adjudicator is additionally entitled to an automatic 5 business days where, in the adjudicator’s opinion, the parties have failed to reach such an agreement.

For a standard payment claim, the only way to lawfully extend these default statutory timeframes is through the written mutual agreement mechanism in section 86(1). For a complex payment claim, section 86 provides a second, independent route: where the parties fail to agree, the adjudicator obtains an automatic further 5 business days under section 86(2)(b) and (3)(b) without anyone’s consent. That is the black-letter position. What the statute does not tell you is how respondents use these same deadlines as a weapon—and how to read an extension request when one lands.

Tactical Considerations for Estimators When Pipeline Counter-Claims are Complex

Expert insight: The volume play is deliberate and predictable. On a progress payment claim pipeline contractor dispute, a well-advised respondent knows that burying the adjudicator in CCTV inspection logs, weld maps, and compaction test data does two things at once: it manufactures a plausible basis for an extension request, and it signals to you that refusal means a void decision and a restart. The counter-claim is often engineered less to win on the merits than to reset your cash flow clock. Be alert, however, to what a refusal actually achieves on a complex claim. Refusing consent does not force an immediate default: the adjudicator still holds the automatic 5-business-day extension for complex claims under section 86, so a refusal on this fact pattern buys the adjudicator time rather than denying it. The point of leverage on a complex claim is therefore the quality of the decision, not a clean jurisdictional cut-off at day 15.

Before you agree or refuse, read the adjudicator's request for tells. An adjudicator who asks a pointed question about your claim, seeks a specific document, or requests submissions on a discrete valuation issue is usually working toward a determination and close to landing it. An adjudicator who asks for time "to review the material" in generic terms, with no reference to your case, is more likely drowning—and drowning adjudicators do not reliably decide in the claimant's favour.

Weigh three things: how far into the statutory period the request lands, whether the extension sought is proportionate to the genuinely new material, and whether the respondent has actually consented in writing. A one-day-before-deadline request to review reports that were served with the response, not late, tells you the delay is structural, not evidentiary. If the numbers on your claim are strong and the defects material is thin behind the page count, granting a short, documented extension is often the lesser risk than restarting.

Requirements for Consenting to an Extension Under Section 86

If you decide that granting the extra time is the lesser of two evils, the procedural execution must be flawless. As set out above, for a standard payment claim section 86 allows an extension only where both the claimant and the respondent agree in writing. The following applies to complex claims: the separate automatic extension for complex claims does not depend on your consent and cannot be defeated by you refusing it. If the respondent stays silent, you must assume the strict deadline remains in effect and prepare to execute your next procedural steps the moment the clock runs out.

The Jurisdictional Consequences of a Late Adjudication Decision

If an extension isn't formally agreed to by both parties and the adjudicator misses the statutory deadline, the legal status of the decision completely changes. At this stage, you are likely shifting from procedural frustration to a serious risk assessment regarding whether you can even enforce the outcome of your claim. This section details how a missed deadline operates as a procedural mechanism that strips the adjudicator of their jurisdiction, outlining what a void decision actually means for your business.

Why a Late Security of Payment Decision Loses All Legal Force Under Queensland Law

The legal consequence of a late decision under the security of payment in Queensland regime is severe. When an adjudicator fails to deliver their decision within the statutory timeframe, they strictly lose the power to decide the matter. This failure constitutes a jurisdictional error. As confirmed by the Queensland Court of Appeal in Civil Contractors (Aust) Pty Ltd v Galaxy Developments Pty Ltd & Ors [2021] QCA 10, the adjudicator's power is defined by the statutory time limit and is spent once that limit passes, so a decision made out of time is of no effect. Practitioners commonly describe such a decision as void ab initio—invalid from the outset, never possessing legal force—though the Court's own reasoning is framed in terms of the adjudicator losing jurisdiction.

Under Queensland law, an adjudication decision delivered after the statutory deadline is generally considered void ab initio, meaning it is legally invalid and cannot be enforced.

Unlike Victoria—where, as the Court of Appeal noted in Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSCA 294, statutory provisions with no Queensland equivalent mean a late decision is not automatically void—Queensland law is uncompromising. The expiration of the deadline immediately terminates the adjudicator's jurisdiction, leaving any subsequent decision fundamentally powerless.

Can the Adjudicator Still Recover Fees Under Section 95 for a Void Decision?

Warning: It is a common source of frustration for pipeline contractors to discover that they may still have to pay for a decision that holds no legal weight. Under section 95 of the BIF Act, the outcome depends on whether the adjudicator made a decision at all. If the adjudicator simply fails to make a decision, s95(6) means they are not entitled to any fees. But where the adjudicator did make a decision that a court later finds void and unenforceable, section 95(8) allows them to retain their fees provided the court is satisfied they acted in good faith during the process. In other words, you can end up paying for a decision that is worthless to you. So do not pay the adjudicator's invoice reflexively: get advice on whether the good-faith test is likely to be met before you decide how to respond.

The Reality of Challenging Void Adjudication Decisions in the Supreme Court

Expert insight: Even if an adjudication decision is delivered out of time and is technically void, a pipeline contractor can rarely afford to simply ignore it. If the late decision is unfavourable and allows a rectification cost dispute contractor deduction, the respondent may still lodge the adjudication certificate as a judgment debt, and a judgment sitting on the record does real commercial damage regardless of its underlying invalidity.

The practical response depends on who bears the pressure. Where lateness is clear on the face of the record and the deadline is not genuinely arguable, a firm letter setting out the void ab initio position, with the calculation of business days spelled out, will often prompt the respondent's advisers to concede rather than fund a losing enforcement fight. Respondents concede most readily when the arithmetic is unambiguous and there is no live dispute about whether a valid extension was in place.

Where they do not concede—usually because the deadline turns on a contested date or a disputed extension—you are looking at an application to the Supreme Court for declaratory relief, and that is neither quick nor cheap. On smaller claims the legal spend can approach the amount in dispute, which is precisely the leverage a respondent is banking on.

The commercial calculus, then, turns on quantum and on how defensible the respondent's position genuinely is. On a substantial claim with a clean lateness argument, moving early for a declaration is usually justified. On a modest claim where the respondent has an arguable extension point, a commercial resolution—or simply defending any enforcement step rather than proactively suing—will often be the more sensible path.

What to Do When the Adjudicator Fails to Deliver on Time

When the clock runs out and no valid extension is in place, you cannot afford to sit back and wait for a late decision. The legislation provides a strict, unforgiving procedural mechanism to rescue your payment claim, and you must act immediately before you lose the right to adjudicate that specific progress claim entirely. This section outlines the critical statutory time limits you must navigate to pivot your claim to a new adjudicator.

The Strict 5-Business-Day Window to Request a New Adjudicator Under Section 94

Warning: You cannot afford to miss the statutory deadline triggered by an adjudicator's default. If an adjudicator fails to deliver a decision within the statutory timeframe, section 94 of the BIF Act gives you two options within the same window: you may ask the registrar to refer the original application to a new adjudicator under s94(2)(a) or you may make an entirely new adjudication application under section 94(2)(b). Both options are subject to a strict 5-business-day window commencing immediately after the adjudicator's deadline passes. Importantly, that deadline is the period "required under section 85"—so on a complex claim the count begins only after any automatic section 86 extension has also expired. Failing to lodge the request within this time frame can operate similarly to the time bar clauses in Queensland contracts, severely prejudicing your right to recover the progress payment via the statutory adjudication pathway.

If a Queensland adjudicator fails to deliver a decision on time, the claimant typically has a strict 5-business-day window to request the registrar to refer the application to a new adjudicator. A critical distinction applies here. Section 94 is triggered only where the adjudicator's power has lapsed through time—that is, where no decision was made within the required period. It is not triggered simply because a decision that was made is later argued to be void for jurisdictional error. In Sun Engineering (Qld) Pty Ltd v Registrar [2023] QSC 168v, the Supreme Court held that a void decision is not the same as a failure to decide, and refused to compel the registrar to refer the matter to a new adjudicator on that basis. The practical consequence is important: if an adjudicator delivers a decision (even a flawed one) within time, your remedy is generally to challenge that decision in court, not to invoke section 94. Section 94 is your pathway where the deadline simply passed with no decision at all.

Lodging a New Adjudication Application for Your Pipeline Claim Under Section 94(2)(b)

This new-application route is the second limb of section 94, under section 94(2)(b), and it operates in parallel with the referral option rather than as a separate remedy. Importantly, it does not require you to formally withdraw the original application first. Once the adjudicator's power to decide has lapsed through the passage of time, there is no live application left for anyone to decide, so a new application under section 94(2)(b) can be made directly within the 5-business-day window. This is distinct from a voluntary discontinuation of a live application under section 97, which is a separate mechanism effected by written notice to the adjudicator and the respondent, not a step required here. While making a new application preserves your substantive right to pursue the payment, it forces the entire statutory timeline to restart from scratch for the new adjudicator's decision—delaying the cash flow you are chasing.

In practice, the sequencing and the record matter. When you make the new application under section 94(2)(b), clearly identify the original adjudication application number and make it expressly on the basis of the adjudicator's failure to decide within the required time—so there is a clean record that the original power lapsed and that you are exercising the section 94(2)(b) entitlement, not abandoning and re-agitating a claim.

Keep the underlying payment claim and adjudication application material identical to the original so there is no argument that you have served a new or different claim. The common misstep is miscalculating the 5-business-day window or letting it lapse; the count runs from the expiry of the period required under section 85 (as extended by any automatic section 86 period on a complex claim), and a late new application is where a respondent will look to argue you are out of time or improperly constituted.

Navigating an Adjudicator Default on a Civil Sewer Main Dispute

Consider a scenario where a pipeline contractor claims $950,000 for a civil sewer main installation—above the $750,000 threshold in section 64 of the BIF Act, so this is a complex payment claim The respondent counters with 800 pages of technical defect allegations, prompting the adjudicator to ask for more time. If the contractor refuses the extension, the adjudicator does not default at day 15: because this is a complex claim, section 86 grants the adjudicator an automatic further 5 business days where the parties have not agreed to an extension.

Only if the adjudicator then misses that extended deadline—the 15-business-day complex period under section 85(1)(b) of the BIF Act, plus any automatic section 86 extension—must the contractor pivot immediately. They are likely required to make a new application or request a referral under section 94 within 5 business days to salvage the claim. This tactical pivot can often determine whether the contractor secures their cash flow or finds themselves bogged down in protracted building and construction disputes over a void decision.

Conclusion

The pressure of an adjudicator requesting a last-minute extension on your complex pipeline claim places the strategic burden squarely on your business. You now know that a written extension under section 86 requires the consent of both parties, but that on a complex payment claim the adjudicator also holds an automatic further 5 business days that no refusal can defeat. Once every applicable period has expired without a decision, the adjudicator loses jurisdiction entirely, rendering any late decision void ab initio. More importantly, you understand the severe procedural risk of doing nothing when the clock runs out.

If an adjudicator defaults, the strict 5-business-day window under section 94 to request a new adjudicator becomes your most critical deadline. Do not wait for a late, potentially unenforceable decision to arrive in your inbox—by the time it does, that window may already be closing.

If you are approaching an adjudicator's deadline without an agreed extension, or the deadline has just passed, act now. Contact Merlo Law today so we can assess your position, calculate the business-day count, and lodge your section 94 request before the clock runs out on your payment claim.

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FAQs

What happens if an adjudicator is late delivering their decision in Queensland?

Under Queensland law, a late adjudication decision is generally considered void ab initio, meaning it never possessed legal force. If an adjudicator fails to deliver the decision within the statutory 10 or 15 business days, they lose jurisdiction over the matter.

Can I unilaterally agree to extend the adjudicator's timeframe?

For a standard payment claim, an adjudicator's timeframe cannot be extended by only one party—section 86 of the BIF Act requires that both the claimant and the respondent agree in writing. A complex payment claim is different: under section 86, if the parties fail to reach that agreement, the adjudicator is entitled to an automatic further 5 business days, so a refusal by one party does not stop the clock on a complex claim.

What is my deadline to act if the adjudicator fails to deliver a decision on time?

If an adjudicator fails to deliver their decision within the statutory timeframe, you typically have a strict 5-business-day window to act. Under section 94, you may either request the registrar to refer the original application to a new adjudicator, or make an entirely new adjudication application, within this period. Note that section 94 applies where the deadline passed with no decision made in time; it does not apply merely because a decision that was made is later argued to be void (Sun Engineering (Qld) Pty Ltd v Registrar [2023] QSC 168).

Do I still have to pay the adjudicator's fees if their decision is late and void?

It depends on whether the adjudicator made a decision at all. If the adjudicator simply fails to make a decision, section 95(6) means they are not entitled to any fees. But where the adjudicator did make a decision that a court later finds void and unenforceable, section 95(8) allows them to retain their fees if the court is satisfied they acted in good faith—so you can end up paying for a decision that is worthless to you.

How is a complex payment claim defined for the purposes of the adjudication deadline?

Under section 64 of the BIF Act, a complex payment claim is defined solely by value: it is a payment claim for an amount more than $750,000, or a greater amount if one is prescribed by regulation. There is no separate "legal or factual complexity" test—any claim of $750,000 or less is a standard payment claim. For a complex payment claim, the adjudicator must deliver their decision within 15 business days, compared to the 10-business-day limit for standard claims.

How do I challenge a void adjudication decision if the respondent tries to enforce it?

If a respondent attempts to enforce a late, void decision against your business, you may need to apply to the Supreme Court for a formal declaration of invalidity. This process can be costly, and courts may weigh various factual circumstances and discretionary considerations before granting declaratory relief.

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This guide is for informational purposes only and does not constitute legal advice. For advice tailored to your specific circumstances, please contact Merlo Law

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