A new tribunal - the Queensland Civil and Administrative Tribunal - starts operation today, 1 December 2009.

This “super tribunal” will amalgamate a number of existing tribunals across a wide variety of areas into one tribunal. The tribunals that are amalgamated will cease to exist, although transitional arrangements will operate to facilitate the introduction of QCAT.

The new tribunal is a significant reform to Queensland’s justice system and is designed to increase the community’s access to justice.

QCAT will operate across three divisions: the human rights division, the civil disputes division, and the administrative and disciplinary division. As the Commercial and Consumer has been amalgamated, QCAT will have jurisdiction to hear domestic and commercial building disputes in the civil disputes division.

QCAT will also have an appeals jurisdiction, and as such, will have an internal and external appeal facility, depending upon the type of decision made.

The tribunal will be headed by The Hon Justice A M Wilson SC as President. Judge F Kingham has been appointed as Deputy President.

Business days over the Christmas period

The interpretation of “business day” under the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) becomes particularly important to industry participants over the Christmas and New Year period.

Under the Acts Interpretation Act 1954 (Qld) any Saturday, Sunday, public holiday, special or bank holiday is not classed as a business day. The BCIPA further stipulates that the days between Christmas and New Year’s Day are not to be considered business days for the purposes of the Act.

Therefore, all days between (and including) 25 December 2009 and 1 January 2010 are not business days under the BCIPA.

This is particularly relevant when considering service of, for example, a payment claim under the BCIPA. Once a payment claim is served, a respondent has 10 business days to serve a payment schedule. However, in the event that a payment claim is served on Christmas Eve, for example, the respondent will have until 15 January 2010 to serve a payment schedule. The day any notice is served is not counted as a business day when calculating timeframes under the BCIPA, and as such, the first business day would be Monday 4 January 2010.

This “down time” applies to all processes and notices under the BCIPA.

We suggest that you familiarise yourself with the relevant time frames of the BCIPA, including the excluded days under the definition of “business day” as detailed above.

Service of claims and applications over the Christmas period

With the Christmas period getting closer, industry participants should be conscious of any payment claims which may be due, and be extra vigilant in checking correspondence and documents from contractors during December and January. The most common way to serve a claim or an application is by posting or delivering to the head office or registered office of a principal. However, be aware that notices under the BCIPA may also be served by facsimile or even by email. It is important that all avenues of service are carefully monitored.

We also recommend that you ensure that staff are well briefed on the importance of recognising payment claims or applications when they are served, and that they understand the risks involved in not responding on time.

To avoid having to deal with claims coming in over the Christmas period (and the possibility of a claim going unnoticed), it may be prudent to agree with your contractors that both service of final claims for the year and any applications be made before the Christmas period (on or before 24 December 2009). Any correspondence and documents received should still be closely scrutinised, despite any agreement. This will create some certainty and hopefully avoid any unexpected presents turning up in your Christmas stocking this year!

Payment claims are undoubtedly a quick and effective mechanism of receiving payment when owed, but in the fast-paced world of sending and receiving payment claims, the fundamentals of the Building and Construction Industry Payments Act 2004 (Qld) are often overlooked. The case of Surfabear Pty Ltd v G J Drainage & Concrete Construction Pty Ltd serves as a reminder of how important the fundamentals are.

One of the critical requirements of the Act is identifying the right respondent - you may win at adjudication, but your victory could be short lived. The Surfabear case demonstrates how a Court could intervene and make the decision void.

In this case, Jorgensen, the owner, entered into a residential building contract with a contractor, Surfabear. Certain works, such as excavation works, remained Jorgensen’s responsibility.

Jorgensen engaged GJ Drainage to perform the excavation works. The quotation for the works made no reference to Surfabear. All invoices were sent from GJ Drainage to Jorgensen, who would arrange payment.

During the progress of the contract, changes were made to the excavation plans and GJ Drainage performed additional work.

On 31 August 2008, an invoice was sent from GJ Drainage to Jorgensen for works covered by the quotation plus ‘extra over job’ charges. Jorgensen disputed this amount and made a part payment to cover the works initially contracted for, and additional works undertaken with Jorgensen’s consent. Jorgensen said all other works and charges were unauthorised.

Following this response, GJ Drainage sent a payment claim to Surfabear and proceeded with an adjudication against it. GJ Drainage won at adjudication and filed the adjudication certificate as a judgment.

Surfabear filed an application to have the decision declared void, and to restrain GJ Drainage from taking any steps to enforce the decision. Its reasoning for doing so was that the adjudicator erred in finding that a contract or arrangement existed between itself, Surfabear, and GJ Drainage, as required under the Act. Accordingly, the adjudicator did not have jurisdiction to decide the dispute. GJ Drainage denied this and argued that Surfabear failed to comply with the requirements of the Act when bringing its proceedings.

The judge referred to the Brodyn case, noting that one of the “basic and essential requirements” for a valid adjudicator’s decision is the “existence of a construction contract between the claimant and the respondent, to which the Act applies”.

The key issue to be decided was whether “on the balance of probabilities, no reasonable adjudicator could have been reasonably satisfied that the respondent had satisfied its onus of showing that a construction contract existed as between it and the applicant”.

The judge answered that question in the affirmative, and found that even if arrangements that are not legally binding fall within the definition of construction contract, the “arrangement” in question still needs to be between the parties in dispute, which was not the case in this instance. The judge found that GJ Drainage was “not a party to the building contract, nor did it have any entitlement to payment under the loan agreement”.

He said that at most “there was some loose form of understanding under which the applicant was to pay the respondent,” and the evidence was “equivocal and cannot support the finding” against Surfabear.

What does this mean for you?

Claimants

Serving the correct entity is critical. To make sure you know who this is, you should always ensure that you have a written agreement for any works performed, clearly naming the parties and executed by the parties.

Respondents

If you have an adjudication decision made against you where you are not a party to the contract, all is not lost. You may have the right to have the decision declared void, preventing an unfair enforcement against you.

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