King & Wood Mallesons

Asia-Pacific 100 position: 2

Court takes a new approach to jurisdictional errors in BCIPA adjudications

A Queensland Supreme Court judgment delivered on 22 March 2013, BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd & Ors [2013] QSC 67, has overthrown the established position that an adjudication decision made under the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) can be set aside or declared void in its entirety if it is found that any part of the decision is infected by jurisdictional error.

BGC was awarded approximately $28.16m in an adjudication determination made under BCIPA. BMA sought a declaration from the court that the determination was infected by three separate jurisdictional errors and was therefore void.

The judge found that BMA had established that one of the three jurisdictional errors affected the adjudication determination. The jurisdictional error related to the $4.35m the adjudicator awarded for termination costs. His Honour found that the adjudicator failed to identify a legal source for the entitlement to termination costs…

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