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29 September 2021

Landscaper’s Adjudication Application: Good Service Hard to Find

Tony Mylne, Adam Hempenstall
Tony Mylne Litigation Lawyer
Adam Hempenstall

Serving an adjudication application is necessary before an adjudication can be validly undertaken. Claimants must ensure that they effect valid service and can prove such service to the adjudicator, and if necessary, the Court.  

The recent Supreme Court decision in Equinox Construction Pty Ltd v Henning & Anor [2021] QSC 223 highlights the importance of reliable evidence of service in the security of payment context.

Facts

Mr Henning, a landscaper, issued a payment claim to Equinox Construction Pty Ltd (‘Equinox’) under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (‘BIFA’) for work associated with a town house development at Annerley. Equinox failed to pay the claimed amount and did not provide a payment schedule. Mr Henning obtained an adjudication decision in his favour.

Equinox applied to the Court for an order that the adjudication decision was void. It argued that Mr Henning had failed to comply with section 79(3) of the BIFA, which requires a claimant to give a copy of an adjudication application to the respondent.

Equinox submitted to the Court that it had not received a copy of the adjudication application from Mr Henning. Mr Henning argued that valid service had been effected by posting a copy of the adjudication application to Equinox.

Findings

Justice Ryan was critical of the evidence relied on by both sides, stating that neither party had taken enough care with the evidence assembled for the matter. Importantly, there were deficiencies in Mr Henning’s affidavit with respect to the steps taken to effect service by post. By way of example:

  • Mr Henning’s affidavit exhibited a poor-quality photocopy of a mobile phone screen showing a photograph of an envelope with an address said to be obtained from a QBCC licence search for Equinox. However, the affidavit did not exhibit evidence of the QBCC licence search.
  • The address on the envelope was not identical to that displayed on Equinox’s purchase order, nor did it match the registered office address on ASIC’s records.
  • Mr Henning’s affidavit did not confirm that he had actually posted the envelope containing the adjudication application or that he had paid the necessary postage.

Mr Henning later obtained and exhibited evidence of the relevant QBCC licence search. However, his lack of evidence regarding how the posting was effected and the way in which the postage was paid for proved fatal. Justice Ryan decided that there was insufficient proof that the adjudication application had been served on Equinox. The adjudication decision was declared void.

Lessons

Service of an adjudication application is critical to the adjudicator’s jurisdiction.

Mr Henning’s failure to prove service left him without an enforceable adjudication decision after dedicating resources to defend Equinox’s court application.

It is crucial that claimants put themselves in a position to strictly prove service in accordance with the requirements of the legislation. As this case demonstrates, there are significant risks associated with choosing to serve documents by ordinary post.

If you have any queries regarding the above decision, please contact Tony Mylne or Adam Hempenstall today.


Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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