Adjudication | Construction.Lawyer
BIF Act adjudication specialists for claimants and respondents. Fast-track construction payment disputes. Call 1300 710 864.
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A Fast-Track Resolution Process That Keeps Your Project Moving
Adjudication is the cornerstone of Queensland's security of payment framework — a fast-track, interim dispute resolution process under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (the BIF Act). It was designed by Parliament to solve a pervasive problem: the deliberate withholding of payment as a bargaining tool by parties higher in the contractual chain. When a subcontractor has performed work in good faith, delivered materials, engaged labour, and met their obligations, they should not wait twelve to twenty-four months for a court determination while cash flow starvation threatens their solvency. Adjudication ensures money continues to flow through the contracting chain, preserving businesses and keeping construction sites operational.
The defining characteristic of adjudication is its extraordinary speed. From lodgement to determination, the total timeframe is approximately sixty business days — compared with one to two years in litigation. An adjudicator's determination is interim binding and enforceable as a judgement debt once registered as an adjudication certificate. The respondent must pay within five business days, failing which the claimant may enforce through the courts. Its effectiveness depends on the quality of the application and the technical understanding brought to the disputed issues. Our dual-qualified engineer-lawyers deliver a decisive advantage — we understand the legislative framework, the construction work, and the commercial realities underpinning every payment dispute because we have managed them across decades of project delivery.
Acting for Claimants: Maximising Your Recovery
When you are owed money for construction work, adjudication under the BIF Act is the most direct path to recovery. Our approach begins with a rigorous assessment of the merits. We review the contract — whether AS4000, AS2124, AS4902, or a bespoke agreement — together with the payment claim, payment schedule, and all supporting documentation to evaluate the claim's strength. This assessment is critical because adjudication is a paper-based process — the adjudicator forms their view from the written submissions presented. A weak application risks not merely an unfavourable outcome but prejudice to the claimant's position in subsequent litigation.
Once we confirm the claim warrants adjudication, we prepare a comprehensive application satisfying every requirement of the BIF Act. Under section 78, the application must be lodged within strict timeframes and include the payment claim and payment schedule, identify the disputed amount, set out the reasons the claimant is entitled to that amount, and include all supporting documentation. We compile exhaustive evidence including progress reports, site diaries, photographs, variation registers, extension of time claims, and quantum meruit calculations where applicable. The adjudicator's understanding depends on this material, and we ensure the application is technically sound and legally compelling.
We respond promptly to adjudicator requests for further information and ensure every jurisdictional requirement is satisfied — from the validity of the reference date and proper service of the payment claim, to compliance with statutory timeframes. A jurisdictional defect can render an application invalid regardless of its merits, and our meticulous attention protects claimants from procedural failure. Once a favourable determination is issued, we move swiftly to obtain the adjudication certificate and enforce it through the courts.
Acting for Respondents: Protecting Your Position
When a respondent receives an adjudication application, the stakes are immediate — a determination creates a binding obligation to pay within five business days, with court enforcement available if payment is not made. At Construction.Lawyer, we act extensively for head contractors, developers, and principals facing applications that are inflated, unsubstantiated, or procedurally defective. Our first step is always to review the application for jurisdictional defects — examining whether the payment claim was served within the correct reference date, whether it complies with section 68 of the BIF Act, whether the application was lodged within the statutory timeframe, and whether the adjudicator was properly appointed. Where a defect exists, we advise on the most effective strategy for challenging the application or resulting determination.
Where the application is jurisdictionally sound, we prepare a comprehensive response addressing every aspect of the claimant's case. Under the BIF Act, the respondent's response is generally limited to reasons set out in the payment schedule, unless the adjudicator determines exceptional circumstances justify new reasons. This limitation makes the quality of the original payment schedule critically important. Our responses challenge unsubstantiated claims, identify errors in the claimant's evidence, and present the respondent's position with technical authority. We also advance set-offs, counterclaims, and cross-claims where available, and advise on applications to set aside determinations for jurisdictional error or breach of natural justice.
The Adjudication Process: Timeframes and Critical Steps
The adjudication process follows a prescribed sequence governed by strict statutory timeframes. It commences when a claimant serves a payment claim for a valid reference date. The respondent has a limited period — typically fifteen business days — to provide a payment schedule. If the respondent fails to respond within time, or pays less than the scheduled amount, the claimant may lodge an adjudication application with an authorised nominating authority within twenty business days. The authority must appoint an adjudicator within four business days, who invites an adjudication response within ten business days. The adjudicator then has a further ten business days to deliver a determination.
Adjudicators are focused, practical decision-makers. They assess documentary evidence and evaluate contractual and statutory entitlements without conducting oral hearings or awarding costs. What they look for is clear, substantiated, well-organised evidence addressing the disputed issues directly. Common pitfalls include inadequate documentation, failure to address reasons for withholding payment, missed timeframes, and jurisdictional defects. Respondents frequently undermine their position by failing to provide a payment schedule within time — rendering them deemed indebted for the full amount under section 71 — or by providing an inadequate response. Proper preparation at every stage is essential, and our involvement from the earliest point ensures these pitfalls are avoided.
The Complete Adjudication Timeline
Understanding the day-by-day progression of an adjudication is essential for protecting your rights under the BIF Act. The process begins on Day 0, when the claimant serves a valid payment claim on the respondent. This is the triggering event that sets the statutory machinery in motion. The payment claim must be served on a valid reference date, contain the information required by section 68, and include the prescribed statement. A defective payment claim at this stage will undermine everything that follows, which is why we review the claim before service to ensure it withstands scrutiny.
On Day 15, the respondent's payment schedule is due — typically fifteen business days from service, or a shorter period if the contract specifies one. This document is the respondent's opportunity to explain why they are withholding payment, and its importance cannot be overstated. The reasons given in the payment schedule generally form the boundaries of what the respondent can argue in their adjudication response. A respondent who fails to serve a payment schedule within time becomes liable under section 71 for the full claimed amount as a debt due. On Day 35 — twenty business days after the due date for the payment schedule — the claimant's window to lodge an adjudication application closes. This deadline is absolute and unforgiving; an application lodged on Day 36 is invalid.
The authorised nominating authority must appoint an adjudicator by Day 39 — within four business days of receiving the application. The appointed adjudicator then issues a notice to the respondent, who has until Day 49 to serve an adjudication response — ten business days from receipt of the application. The adjudicator must deliver a determination by Day 59 — ten business days from the date the response was due or served, whichever is earlier. Once issued, the respondent has five business days to pay the adjudicated amount. If payment is not made, the adjudicator issues an adjudication certificate, which the claimant may file in court for registration as a judgment debt and immediate enforcement through garnishee orders or winding-up proceedings.
Jurisdictional Challenges: Identifying and Arguing Defects
Jurisdictional challenges form one of the most critical aspects of adjudication practice. An adjudicator who acts without jurisdiction renders a determination that is void and liable to be set aside by the Supreme Court. The most common jurisdictional problems include the absence of a valid payment claim — where the document served does not comply with section 68, does not identify the construction work with sufficient particularity, or omits the prescribed statement. Another frequent defect is an application lodged out of time — after the twenty business day window has closed — which is fatal to the claimant's position regardless of the underlying merits.
Other jurisdictional challenges arise where there is no construction contract as defined by the BIF Act, such as domestic building work excluded by the Act, or where the contract was not in writing as required by section 67. We also encounter challenges where the matter has already been decided by a previous adjudicator, court, or arbitral tribunal, because the BIF Act does not permit re-litigation through successive applications. The choice of adjudicator application body can also create issues, particularly where the contract specifies a particular nominating authority and the claimant lodges with a different body. Our approach to jurisdictional challenges is methodical: we conduct a forensic review of every document in the adjudication chain, identify each potential defect, advise on the prospects of success, and advance the strongest arguments with precision. A successful jurisdictional challenge can bring an adverse determination to its knees.
Case Study: Setting Aside an Unfair $890,000 Determination
We were engaged by a major head contractor who had received an adjudication determination requiring payment of $890,000 to a subcontractor — a determination containing serious jurisdictional errors. The subcontractor had lodged an adjudication application claiming payment for variations, delay costs, and disputed progress payments on a commercial development in Fortitude Valley. The head contractor had served a detailed payment schedule contesting the claim, but the adjudicator ordered payment of nearly the entire amount. We were retained after the determination issued.
Upon reviewing the determination, we identified two fundamental jurisdictional errors. First, the adjudicator had considered matters not raised in the payment claim — the subcontractor had advanced new arguments regarding alleged oral instructions from the site engineer that had never been mentioned in the payment claim. The adjudicator awarded a substantial sum based on these new arguments without jurisdictional basis. Second, the adjudicator had breached natural justice by failing to give the respondent a reasonable opportunity to respond to these new arguments before incorporating them into the determination. The respondent had been given no notice that these claims would be advanced.
We filed an application in the Supreme Court of Queensland under section 108 of the BIF Act to set aside the determination on grounds of jurisdictional error and breach of natural justice. We assembled a comprehensive evidentiary affidavit and conducted careful analysis of the evolving case law on section 108, including the distinction between jurisdictional errors that render a determination void and mere errors of fact or law. The Supreme Court accepted our submissions and set aside the $890,000 determination, finding the adjudicator had acted beyond jurisdiction and breached the rules of natural justice. The case underscores the critical importance of jurisdictional vigilance and the value of specialised representation.
Enforcement and Setting Aside Determinations
An adjudicator's determination is interim binding on the parties. While enforceable immediately, it does not finally determine the parties' rights — either party may pursue final resolution through litigation or arbitration. The practical effect is profound because the successful party can enforce the determination as a judgment debt through the courts.
The adjudicator issues an adjudication certificate if the respondent has not paid within five business days. The claimant may file this in court, where it is entered as a judgment enforceable through garnishee orders, charging orders, writs of execution, and winding-up proceedings. The respondent may apply to set aside registration on limited grounds — principally jurisdictional error or breach of natural justice. Jurisdictional error occurs where the adjudicator acted beyond their authority, such as by determining a matter not referred to adjudication or making a determination on an invalid payment claim. Breach of natural justice arises where the adjudicator denied a party a reasonable opportunity to present their case. These grounds are narrow, and courts consistently hold that determinations will not be set aside merely for errors of fact or law. This high threshold underscores the importance of getting the process right from the outset.
Tips for Maximising Adjudication Success
Success in adjudication depends on preparation, precision, and understanding the adjudicator's constraints. For claimants, document everything from day one on the project. The adjudicator cannot see your work — they can only see your documents. Maintain comprehensive site diaries, take dated photographs, keep copies of all correspondence, and ensure every variation is documented in writing. When preparing your application, use clear, logical arguments that walk the adjudicator through your case step by step. Set out what work was performed, what the contract requires, how the amount has been calculated, and why the respondent's reasons for withholding are wrong. Provide complete evidence — do not assume the adjudicator knows your project or will fill gaps in your submissions.
For respondents, your adjudication response is generally limited to the reasons in your payment schedule, so the quality of that schedule is paramount. Serve it within time, set out every reason for withholding with specificity, and quantify each deduction. When the application arrives, do not raise new arguments not in your payment schedule unless you can demonstrate exceptional circumstances. Do not raise new counterclaims — the adjudicator lacks jurisdiction to determine them. Instead, focus on dismantling the claimant's case with reference to the contract, evidence, and applicable law. Understand that the adjudicator works under severe time constraints — make their task easier with a structured, logical response. The parties who succeed are those who respect the process and present their case with clarity and rigour.
Frequently Asked Questions About Adjudication
How much does adjudication cost? The claimant pays the application fee to the authorised nominating authority, and both parties typically bear their own legal costs. The adjudicator's fees are generally apportioned as the adjudicator determines, often equally. While adjudicators cannot award costs in favour of one party, the overall cost is typically a fraction of litigation. We provide transparent cost estimates at the outset of every engagement.
Can I adjudicate without a written contract? The BIF Act requires a construction contract to be in writing or evidenced in writing. This does not require a formal signed agreement — written evidence may include emails, text messages, purchase orders, or invoices. If there is no written evidence at all, statutory adjudication may not be available, though general law rights may still exist. We can assess your circumstances and advise on the appropriate course of action.
What if the respondent ignores the application? If the respondent fails to serve a response within ten business days, the adjudicator may determine the application based solely on the claimant's submission. This is extremely unfavourable for the respondent, and the resulting determination is still enforceable as a judgment debt. Immediate action upon receiving an application is essential — delay can be devastating.
Can I still go to court after adjudication? Yes. A determination is interim binding, not finally determinative. Either party may pursue final resolution through litigation or arbitration. However, the successful party can enforce the determination immediately as a judgment debt while final proceedings are pending, which creates strong incentives for settlement.
Contact Our Adjudication Specialists
Adjudication under the BIF Act is a powerful mechanism for resolving construction payment disputes — but its effectiveness depends on the quality of preparation and advocacy at each step. At Construction.Lawyer, our dual-qualified engineer-lawyers bring unmatched legal expertise and practical construction knowledge to every adjudication matter. Whether you are a claimant recovering unpaid progress payments or a respondent defending an unsubstantiated claim, we have the expertise to secure the best outcome.
Call us today on 1300 710 864 to discuss your adjudication matter with one of our senior practitioners. Timeframes under the BIF Act are unforgiving, and early advice is the key to success. Visit our Brisbane headquarters at Suite 140, 167 Eagle Street, Brisbane QLD 4000, or contact one of our national offices in Sydney, Melbourne, Perth, or Darwin. We act for clients on adjudication matters across Queensland and throughout Australia.
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