In Azure Project 19 Pty Ltd v 5 Point Projects Pty Ltd [2026] QSC 96, Kelly J made an order under s 101(4) of the BIF Act severing part of an adjudication determination which was impacted by jurisdictional error after finding that the adjudicator failed to consider the terms of the Contract relating to LDs and thereby failed to carry out the statutory task required by s 88 of the BIF Act.
Case Background
In October 2022 Azure and 5PP entered into a D&C contract for luxury residential development. In June 2025 5PP served a payment claim for $4.02m. The Superintendent certified that $1.13m in LDs were payable by 5PP. Azure issued a notice of set off for LDs and a payment schedule certifying $48.5k as payable. In August 2025 5PP applied for adjudication and was awarded $1.73m. Azure commenced proceedings seeking orders that the decision is void for jurisdictional error.
The Issue
The parties' written submissions in the adjudication related to the dates of/for practical completion and LDs payable. The only basis on which the adjudicator's decision can be challenged is by invoking the Court's supervisory jurisdiction on the basis of jurisdictional error, succinctly described in Ceerose as "a decision-maker exceeding the authority to decide conferred on them, or failing to exercise that authority when required to do so", and the distinction between jurisdictional and non-jurisdictional errors, described in Hossain as "a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised".
Azure submitted that the adjudication decision was affected by four jurisdictional errors. The second ground was that the adjudicator failed to consider the terms of the Contract relating to LDs and thereby failed to carry out the statutory task required by s 88(2) of the BIF Act. The mental processes of the adjudicator were revealed in the decision when he said that the date on which PC was reached was immaterial to his considerations because each party contended for a date that was after the reference date. No party submitted to the adjudicator that the reference date had relevance to the determination of the date of PC or the availability or calculation of LDs, and no party was heard about the relevance of the reference date to these matters. Also, the adjudicator did not consider cl 34.7 which certified LDs as a debt due and payable and made a finding based on an admission or concession of 5PP.
The Outcome
His Honour considered if the error was material and ultimately found that the decision that was made could realistically have been different if there had been no error, and the possibility of a different outcome on LDs more than fanciful. Accordingly the ground was established, as was the third ground, that the adjudicator failed to give adequate reasons in relation to the LDs issue and thereby failed to carry out the statutory task under s 88(5).