What Happens When the Supreme Court Quashes a BIF Act Adjudication?

Q: Does a successful judicial review mean I don't have to pay the subcontractor?

No, a successful judicial review quashing an adjudication decision typically does not permanently eliminate the payment claim. The Supreme Court often remits the matter back to the adjudicator for a fresh determination, meaning you may still be found liable to pay a corrected amount.

Q: Can I introduce new reasons for withholding payment during a remitted adjudication?

Typically, you cannot introduce fresh reasons for withholding payment that were not included in your original payment schedule. During a remitted adjudication, you generally remain constrained by the jurisdictional limits established by your initial response to the payment claim.

John Merlo
12 minutes ago
13 min read

Key Takeaways

Proving jurisdictional error in the Supreme Court rarely ends a security of payment dispute permanently; the court typically remits the voided decision back to the original adjudicator.
When an adjudication decision is remitted, the strict statutory timeframes for a determination effectively reset, binding the head contractor to the new process.
The window immediately following a quashing order presents a strategic opportunity to negotiate a commercial settlement with the subcontractor before further legal costs accrue.
Respondents must carefully weigh the significant litigation costs of judicial review against the risk that a corrected adjudication determination may still require full payment.

You have just walked out of the Supreme Court of Queensland with a ruling in your favour, having successfully argued that an adjudicator committed a jurisdictional error when assessing a subcontractor’s bloated payment claim. The original determination—which ordered you to pay hundreds of thousands of dollars—has been quashed. But before the relief can set in, you read the final paragraph of the judgment: the matter is remitted to the adjudicator for further consideration. After spending significant time and legal fees challenging a defective decision, you are abruptly thrust back into the very statutory process you thought you had defeated. For commercial head contractors, understanding that a Supreme Court victory is often just a procedural reset is critical to managing the true financial exposure of a payment dispute.

The Legal Distinction: Judicial Review vs BIF Act Finality

You’ve just successfully argued in the Supreme Court that the adjudicator made a jurisdictional error, expecting the massive liability to vanish. Instead, the judgment orders the matter back to the adjudicator. This section clarifies the procedural reality of how court oversight interacts with strict statutory deadlines, explaining why a legal "win" often simply resets the board.

Separating Supreme Court Supervisory Power from BIF Act Merits

Many commercial principals confuse two very different powers. An adjudicator decides whether a payment claim has merit under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) ("BIF Act"). The Supreme Court, exercising its supervisory jurisdiction under the Judicial Review Act 1991 (Qld), does not ask whether the subcontractor deserved the money—only whether the adjudicator followed the rules. An adjudicator is tasked with valuing construction work and determining what is payable based on the contract and statutory criteria.

The court's role, by contrast, is strictly limited to reviewing the lawfulness of the decision-making process itself. When a head contractor obtains independent construction law advice to challenge a decision, the focus is entirely on identifying where the adjudicator stepped outside their statutory authority—not on re-arguing the valuation of variations or delay costs.

A successful judicial review in Queensland quashes the legal validity of the adjudication decision but does not resolve the underlying merits of the payment claim.

Because the court is only policing the jurisdictional boundaries, proving that the adjudicator made a procedural error invalidates the specific determination but leaves the original payment dispute unresolved.

The Strict Statutory Adjudication Timelines Under Section 85 of the BIF Act

The BIF Act imposes rigid deadlines on the entire adjudication process to facilitate rapid cash flow in the construction industry. At the centre of this framework is the statutory clock governing the decision-maker. Section 85 of the BIF Act states that "(1) Subject to section 86, an adjudicator must decide an adjudication application no later than—(a) for a standard payment claim—10 business days after the response date".

These 10 business days represent a strict window. Ordinarily, once this maximum statutory timeframe expires, the adjudicator loses jurisdiction to determine the application. They cannot unilaterally issue a late decision or reach back into the dispute once the clock has run out. For a detailed review of the statutory text, you can reference the Building Industry Fairness (Security of Payment) Act 2017 (Qld) s 85.

How Section 101 of the BIF Act Overrides the Expired Clock

A common misconception among head contractors is that because the BIF Act's 10-business-day timeframe has long expired by the time a Supreme Court challenge concludes, the subcontractor's claim is permanently dead. However, the court’s supervisory powers effectively bridge the gap between a voided decision and an expired statutory clock. In Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd [2026] QSC 21, the Supreme Court confirmed that remittal is available as an aspect of the court’s supervisory jurisdiction over decisions affected by jurisdictional error, and that the breadth of section 101(3)(b) of the BIF Act is sufficient to support orders accommodating the statutory timing requirements. Section 101(3)(b) empowers the court, "in any proceedings before a court or tribunal in relation to any matter arising under a construction contract," to make "any other orders it considers appropriate, having regard to its decision in the proceedings."

When a court exercises this power under s 101(3)(b) of the BIF Act, the remittal order can reactivate the adjudicator's jurisdiction and reset the clock, with time under s 85 of the BIF Act recommencing from the date the adjudicator receives notice of the order. The court’s binding directions typically compel the adjudicator to reassess the application according to law, effectively restarting the procedural mechanism and forcing the head contractor to re-engage with the very process they just challenged.

The Practical Decision Sequence: Responding to a Quashing Order

At this stage, the court has handed down its judgment, and the clock is ticking before the adjudicator issues fresh directions. This section maps exactly what commercial and legal steps the head contractor must take in the immediate aftermath of a successful judicial review to regain control of the dispute.

Immediate Assessment Following a Supreme Court Quashing Order

The critical first step in the remittal sequence is obtaining the sealed court order and reviewing the precise directions the judge attached to it. The dispute is not paused; it is actively returning to the statutory track governing security of payment in Queensland. Commercial managers must immediately verify whether the court's order explicitly directs the adjudicator on how to treat the specific jurisdictional error that was successfully argued, or whether the adjudicator is simply instructed to reassess the application according to law.

Upon remittal from the Supreme Court, a head contractor must immediately prepare to engage with the adjudicator's renewed directions rather than assuming the dispute is finalized.

As demonstrated in Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd [2026] QSC 21, the court possesses the power to reset expired statutory timeframes upon remitting a void adjudication. In that matter, the adjudicator's decision had been declared void because the adjudicated amount was calculated by reference to amounts paid rather than amounts certified—an error the court regarded as narrow and readily capable of correction, which is precisely why remittal was ordered rather than final litigation. Practitioners should note that an appeal has been filed, so the position may develop. This means the head contractor's team must rapidly assemble the necessary resources to draft further submissions that comply with the newly activated timeline.

Calculating the Cost of Remittal Versus the Cost of Settlement

The hard question is not whether you can win the judicial review—it is what winning actually buys you. Where the jurisdictional error is narrow and technical, a corrected determination will often land on a similar figure, meaning you have funded two adjudications and a Supreme Court proceeding to move the number very little.

Run the arithmetic before you file. Tally four things: the sunk legal costs of the review; a second round of adjudicator fees; fresh submission drafting; and the realistic delta between the quashed amount and what a compliant adjudicator is likely to arrive at. If that delta is smaller than your total spend, the review is a commercial loss even with a favourable judgment.

The calculus shifts where the error goes to the core of the valuation—for instance, where the adjudicator decided a claim that fell outside the reference period or awarded amounts never claimed in the payment claim. There, remittal can genuinely strip out a material sum, and the spend is justified.

The point at which to test settlement is before the adjudicator issues renewed directions. Once the statutory clock restarts, your counterparty's incentive to compromise narrows quickly, and the window where dispute fatigue works in your favour is short.

Engaging the Subcontractor Before the Adjudicator Issues New Directions

Warning: Waiting passively for the adjudicator to issue new directions can severely undermine a head contractor's negotiating position. While parties might wish to pause the adjudication to explore a commercial settlement, their ability to do so is strictly limited by statute. Section 86 of the BIF Act explicitly provides that the claimant and respondent may, before or after the end of the maximum period under section 85(1), "agree in writing that the adjudicator has additional time to decide the application." The extension is confined to the additional time the parties actually agree in writing; there is no open-ended ability to pause the process indefinitely.

If the parties fail to formally document these adjudication extensions or reach a swift settlement, the adjudicator is likely to proceed with the determination to avoid breaching their renewed statutory obligations. Relying on an informal agreement to delay the process may result in the adjudicator handing down a binding decision before a settlement is finalised, which can instantly erode any tactical leverage the head contractor held. For the statutory text governing this limitation, see the Building Industry Fairness (Security of Payment) Act 2017 (Qld) s 86.

Tactical Leverage During the Remittal Window

You now hold a rare tactical advantage: the subcontractor's original victory has been wiped out, and they are staring down another round of legal and adjudicator fees with no guarantee of the same result. This section shows how to use this brief window to encourage a commercial compromise on terms that favour you.

Using the Threat of Ongoing Legal Costs to Force a Commercial Deal

Following a successful Supreme Court challenge, the subcontractor's position is typically highly vulnerable. Not only has their initial adjudication victory been quashed, but they may also be exposed to an adverse costs order from the Supreme Court proceeding, and they must now fund further submissions for the remitted adjudication. Engaging a Queensland litigation lawyer to frame a rapid, discounted settlement offer can be highly effective during this phase.

The period immediately following a Supreme Court remittal order provides a critical window for head contractors to negotiate a commercial settlement before a second adjudication determination is issued.

Frame the offer around the subcontractor's forward spend, not your grievance about the original claim. The most persuasive approach quantifies for them what a second adjudication actually costs: fresh submissions, a further round of adjudicator fees, and the real prospect of an adverse costs order still hanging over them from the Supreme Court proceeding.

Anchor the number to net recovery. A subcontractor chasing a six-figure claim rarely stops to calculate that another round of fees, plus delay, can reduce their genuine take-home to a fraction of the headline figure. Putting that net position in front of them—cash now versus a smaller, later, uncertain sum—reframes a "discount" as their best available outcome.

Move early, while the sealed order is fresh and before the adjudicator's directions land. Cash-flow pressure on subcontractors is often acute after a lost proceeding, and an offer that is clean, prompt, and payable quickly tends to carry more weight than a marginally higher figure with strings attached.

Keep the tone commercial rather than triumphant. An offer that reads as an ultimatum invites a defensive counterparty to dig in and litigate on principle, which is precisely the outcome the spend analysis tells you to avoid.

Deploying Calderbank Offers to Manage Costs Exposure

If the subcontractor refuses to negotiate and insists on proceeding with the remitted adjudication, the head contractor can utilise specific procedural mechanisms to manage future costs exposure. A properly drafted Calderbank offer marked without prejudice save as to costs, serves as a formal settlement proposal that can be relied upon later if the matter returns to court. If the subcontractor rejects a reasonable Calderbank offer during the remittal window, and the adjudicator's subsequent determination yields a less favourable result for the subcontractor than the offer provided, the court may consider the rejection unreasonable. This can potentially expose the subcontractor to indemnity costs in any subsequent litigation concerning the enforcement or validity of the new determination.

Securing the Agreement with a Properly Executed Settlement Deed

When a commercial settlement is reached during the remittal window, formalising the agreement correctly is vital to permanently end the dispute. An informal email exchange agreeing to a payment figure is generally insufficient to instruct the adjudicator to terminate the application by consent. To ensure the adjudication is properly withdrawn, and the underlying payment claim is permanently resolved, the parties should enter into a formal settlement deed.

A settlement deed is designed to provide a comprehensive release of liability regarding the specific payment dispute. However, the enforceability of this clause depends on careful drafting; settlement agreements only permanently bar future claims if properly drafted as a comprehensive deed of release encompassing both the specific adjudication and the underlying payment claim. Failing to ensure the agreement meets the rigorous requirements for executing a deed may allow the subcontractor to attempt to restart the statutory process or pursue the same variations in a subsequent payment cycle.

Managing Risks if the Adjudicator Proceeds to a Fresh Decision

Despite your best settlement efforts, the subcontractor may refuse to compromise, forcing the adjudicator to issue a new determination based on the court's directions. This section explains how to manage your legal exposure when the dispute returns to the statutory adjudication track.

Preserving Defences and Responding to New Adjudicator Directions

If the remitted adjudication proceeds, the head contractor must transition back into strict procedural compliance mode to navigate the renewed BIF Act obligations. The QBCC Adjudication Registry typically manages the administrative reactivation of the file, but the adjudicator will issue specific directions detailing the timeline for further submissions. To effectively manage an adjudication response head contractor teams should action the following steps:

Verify Alignment with Court Orders: Scrutinise the adjudicator's new directions to ensure they strictly align with the Supreme Court's specific orders regarding the jurisdictional error.
Adhere to Jurisdictional Limits: Ensure that any supplementary submissions do not attempt to introduce fresh reasons for withholding payment that were not included in the original payment schedule, consistent with the prohibition on "new reasons" in section 82(4) of the BIF Act.
Maintain Strict Timetable Compliance: Treat the adjudicator's new timetable with the same severity as the initial statutory deadlines, as failure to comply may result in the adjudicator disregarding the late submissions.

When responding to a remitted adjudication, the head contractor remains constrained by the jurisdictional limits of their original payment schedule.

Compliance with Section 90 Payment Obligations Upon Redetermination

If the adjudicator issues a fresh, valid determination following the remittal, the head contractor's statutory liability pathway is re-enlivened. The BIF Act imposes a mandatory requirement on the respondent to discharge the liability created by the new enforceable judgment. Section 90 of the BIF Act stipulates that "the respondent must pay the amount to the claimant on or before ... the day that is 5 business days after the day on which the adjudicator gives a copy of the adjudicator's decision to the respondent" (or, where the adjudicator has fixed a later date for payment, that later date).

Regardless of the time and expense invested in the initial Supreme Court victory, if the new determination is jurisdictionally sound, the head contractor is legally obligated to pay the adjudicated amount. Failing to pay by the specified date exposes the head contractor to immediate enforcement action, which can include the subcontractor obtaining a judgment debt, issuing a statutory demand, or suspending work on site. For the specific statutory obligation, see the Building Industry Fairness (Security of Payment) Act 2017 (Qld) s 90.

Preparing for Enforceability Challenges and Further Litigation

There remains a possibility that the adjudicator may misinterpret the Supreme Court's directions or commit a fresh jurisdictional error during the redetermination. However, head contractors must be exceedingly cautious before electing to withhold payment on the assumption that a second judicial review will be successful. Successive successful judicial reviews are,

in practice, uncommon, and courts may look unfavourably upon a respondent perceived to be using the supervisory jurisdiction merely to delay an inevitable payment. If a commercial manager believes the remitted decision is still infected by jurisdictional error, they should seek independent legal advice or engage a solicitor registered with the Queensland Law Society to assess the merits of a further challenge before the statutory payment deadline expires.

Conclusion

When you emerge from the Supreme Court with an order quashing a massive adjudication determination, the initial relief is entirely justified—you have successfully identified a critical flaw in the adjudicator's process. However, as the remittal order makes clear, that victory is often a procedural reset rather than a permanent release from liability. The subcontractor’s underlying payment claim has not been erased; it has simply been returned to the statutory machinery for a legally compliant assessment. It should be noted that the leading authority on this point, Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd [2026] QSC 21, is subject to an appeal, and the position may develop.

What you now understand is that this procedural reset creates a narrow, highly valuable window of tactical leverage. The subcontractor is facing the prospect of further legal spend, potential adverse costs from the Supreme Court, and the uncertainty of a second adjudication outcome. This fatigue provides an optimal environment for a commercial head contractor to negotiate a discounted settlement that mitigates the final financial blow.

Do not wait passively for the adjudicator to issue their renewed directions and restart the rigid statutory clock. Review the specific terms of the Supreme Court's remittal order immediately, calculate the true cost of funding a second round of adjudication defence, and consider deploying a strategic Calderbank offer to bring the subcontractor to the negotiating table before further expenses accrue. The window is short, and it closes the moment the adjudicator issues fresh directions. If you are holding a sealed quashing order, contact our construction law team today for a same-day review of your remittal order and a clear, commercial assessment of your next move.

FAQs

Does a successful judicial review mean I don't have to pay the subcontractor?

No. A successful judicial review quashing an adjudication decision does not permanently eliminate the payment claim. The Supreme Court often remits the matter back to the adjudicator for a fresh determination, meaning you may still be found liable to pay a corrected amount.

What happens to the strict BIF Act timeframes when a decision is remitted?

When the Supreme Court remits a voided decision, it does so as an aspect of its supervisory jurisdiction, with section 101(3)(b) of the BIF Act ("any other orders it considers appropriate") providing power broad enough to accommodate the statutory timing. As confirmed in Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd [2026] QSC 21, the court can reset the clock so that time under section 85 recommences from the date the adjudicator receives notice of the order. The adjudicator will then issue new directions and a revised timetable for further submissions, and the parties are bound to comply with this renewed process.

Can we agree to pause the remitted adjudication to negotiate a settlement?

Yes, but the ability to pause the process is strictly limited by statute. Section 86 of the BIF Act permits the claimant and respondent to agree in writing that the adjudicator has additional time to decide the application. The extension is limited to the additional time the parties agree in writing, so an informal or open-ended pause is not available.

Can I introduce new reasons for withholding payment during a remitted adjudication?

You generally cannot introduce fresh reasons for withholding payment that were not included in your original payment schedule. During a remitted adjudication, you generally remain constrained by the jurisdictional limits established by your initial response to the payment claim.

If the adjudicator issues a new decision after remittal, do I have to pay it?

Yes, if the adjudicator issues a valid new determination, the statutory obligation to pay is re-enlivened. Section 90 of the BIF Act mandates that the respondent must pay the amount to the claimant on or before the day that is 5 business days after the adjudicator gives a copy of the decision to the respondent (or a later date fixed by the adjudicator), and failure to do so can result in immediate enforcement action.

Should I pursue a second judicial review if the new decision still seems wrong?

You should exercise extreme caution and seek independent legal advice before challenging a remitted decision. Successive successful judicial reviews are, in practice, uncommon, and courts may look unfavourably upon applications perceived as mere delaying tactics.

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