If you thought winning a judicial review of an adjudication decision under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act) would end your dispute, the Queensland Supreme Court has news for you. In Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd [2026] QSC 21, the Court confirmed that where a BIF Act adjudication decision is set aside for jurisdictional error, it can be remitted back to the same adjudicator — even if the statutory timeframe for making the original decision has already expired. The clock simply resets. For respondents in particular, this is a significant strategic shift in how BIF Act adjudication judicial review Queensland proceedings should be approached.
What Is the Building Industry Fairness (Security of Payment) Act 2017?
The Building Industry Fairness (Security of Payment) Act 2017 (Qld) — commonly called the BIF Act or SOPA (Security of Payment Act) — is Queensland’s regime for fast-tracking payment disputes in the construction industry. It applies to contractors, subcontractors, consultants, and suppliers working under construction contracts in Queensland.
The core mechanism is adjudication: a quick, interim determination of a payment dispute by an independent adjudicator. Adjudication decisions are not final — they are interim and can be revisited in litigation — but they are enforceable immediately as a debt. The purpose is to keep money flowing down the contractual chain and prevent subcontractors from being held to ransom by non-paying head contractors or principals.
Key timeframes under the BIF Act include:
- Section 85: The adjudicator must make a decision within a specified timeframe (generally 10 business days from acceptance, extended in some circumstances). These timeframes have consistently been treated by Queensland courts as jurisdictional — meaning a decision made outside time is void.
- Section 79: Claimants must lodge an adjudication application within 30 business days (or 20 business days for some pathways) of the reference date.
- Section 101(3): Courts have power to make appropriate orders in proceedings relating to matters arising under a construction contract.
Participants in building and construction disputes need to understand both the substantive rights and the litigation risk created by this regime.
What Happened in Tomkins v Starline Interiors?
Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd [2026] QSC 21 arose out of a construction contract dispute involving an adjudication under the BIF Act. The respondent (Tomkins) successfully challenged the adjudication decision before the Supreme Court, establishing that the adjudicator had committed a jurisdictional error.
The critical question then arose: what should the Court do with the defective decision?
The respondent’s position was, in essence, that the error should simply result in the decision being set aside — game over. The claimant sought something different: remittal, meaning the dispute would be sent back to the adjudicator to reconsider and make a fresh decision.
The complication was timing. By the time the judicial review proceedings had concluded, the statutory timeframe under section 85 of the BIF Act — within which an adjudicator must make their decision — had already expired. The respondent argued that remittal was therefore unavailable: there was no live jurisdiction for the adjudicator to exercise.
The Court disagreed.
The Key Question: Can a Court Remit After the Time Has Expired?
This was genuinely unsettled law in Queensland. While remittal is well-established in other areas of administrative law and judicial review, its application in the security of payment context had rarely been tested — particularly where the adjudication timeframes (treated as jurisdictional) had already lapsed.
Before Tomkins, a successful respondent in judicial review proceedings could reasonably expect that setting aside the adjudication decision would end the matter — or at least force the claimant to start the adjudication process from scratch. The jurisdictional nature of the time limits seemed to support that reading.
The question turned on the proper interpretation of section 101(3)(b) of the BIF Act, which provides:
“In any proceedings before a court or tribunal in relation to any matter arising under a construction contract, the court or tribunal — … (b) may make the orders it considers appropriate for the restitution of any amount so paid, and any other orders it considers appropriate, having regard to its decision in the proceedings.”
The italicised words — “any other orders it considers appropriate” — were the battleground.
The Court’s Ruling — Clock Resets on Remittal
The Queensland Supreme Court held that section 101(3)(b)’s reference to “any other orders it considers appropriate” is broad enough to authorise remittal of an adjudication decision, even where the statutory timeframe under section 85 has already expired.
Critically, the Court did not merely remit and leave the timing question open. It took the further step of expressly resetting the statutory clock, directing that the time under section 85 would run from the date of the remittal order — not from the date of the original adjudication decision.
This was an important practical step. Without it, the remitted adjudication would itself have been vulnerable to challenge as out of time, potentially creating an endless loop of jurisdictional arguments. By resetting the clock, the Court gave the remitted adjudication a clean basis to proceed.
The effect is clear: success in the Supreme Court does not necessarily end the dispute. It may simply reset it.
What This Means for Respondents in SOPA Disputes
For principals, head contractors, and others who are respondents in BIF Act adjudications, the implications of Tomkins are significant.
Previously, a successful judicial review was a genuinely attractive outcome: the adjudication decision was void, and the claimant faced a significant hurdle in resurrecting the dispute. That strategic calculus has now shifted.
Under the Tomkins framework, you may win the judicial review argument — establishing that the adjudicator made a jurisdictional error — and still face a remittal and fresh determination. The adjudicator gets a second opportunity to consider the claim, this time without the jurisdictional error. They may well reach the same conclusion (or a worse one for the respondent). You will have incurred the cost and delay of judicial review proceedings without necessarily avoiding the ultimate payment obligation.
Practically, this means:
- Judicial review is not a free hit. If the only error is jurisdictional (rather than substantive), the likely outcome is now remittal and redetermination, not complete avoidance of the claim.
- Cost-benefit analysis changes. The cost of judicial review proceedings needs to be weighed against the probability that the adjudicator, on remittal, will still find against you on the merits.
- Substantive merits still matter. A respondent who has strong grounds to challenge the substantive outcome (not just the procedural validity of the decision) will still need to pursue those in separate proceedings, as adjudication decisions remain interim and are not res judicata.
If you are considering challenging an adjudication decision, take advice from experienced commercial litigation lawyers before committing to that course.
What This Means for Claimants
For subcontractors, claimants, and those pursuing payment, Tomkins is broadly positive news.
The concern has always been that a respondent with sufficient resources could effectively kill a meritorious claim by running judicial review proceedings and relying on the expiry of the adjudication timeframe to prevent remittal. That concern is substantially reduced after Tomkins.
Where a jurisdictional error is found, the dispute is now likely to return to the adjudicator for fresh consideration. Claimants should:
- Ensure their underlying claim is documented to the highest standard — remittal means the merits will be reconsidered.
- Be aware that the fresh decision may differ from the original, even where the original was favourable. Remittal is not a guarantee of the same outcome.
- Use the interim period strategically. A claimant holding an adjudication decision (even one under challenge) should consider whether to enforce payment, noting that courts can require repayment if the decision is ultimately set aside.
Claimants dealing with non-payment in the construction industry — whether through adjudication or broader recovery — should consider all available tools, including insolvency mechanisms such as statutory demands where appropriate.
Practical Implications for Queensland Builders and Subcontractors
Tomkins v Starline Interiors delivers several practical lessons for participants in Queensland construction projects:
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Adjudication is not the end of the road — in either direction. Whether you win or lose an adjudication, and whether you succeed or fail in a judicial review, the dispute may continue. Budget and plan accordingly.
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Jurisdictional challenges are now riskier for respondents. If you identify a technical jurisdictional error in an adjudication decision, be realistic about the likely outcome. Remittal is now the default remedy in Queensland, not void and done.
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The BIF Act is a fast-moving area of law. Tomkins resolves one uncertainty but commentators have already noted that the breadth of section 101(3)(b)’s application remains open to further development. Appellate consideration of the issues raised by Tomkins may follow.
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Document everything, from day one. The strength of your position in both adjudication and any judicial review will depend on the contractual record — payment claims, payment schedules, progress claims, site instructions, and correspondence. Construction disputes are won and lost on documentation.
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Early legal advice is critical. The BIF Act involves tight timeframes, and a missed deadline — whether in serving a payment claim, lodging an adjudication application, or responding to an adjudication — can be fatal to your position.
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Consider your commercial objective. The BIF Act adjudication regime is designed to be interim. If you have a genuine dispute about the final value of a claim, judicial review of an adjudication decision may not be the right vehicle. Final determination in the courts or arbitration remains available and is unaffected by adjudication outcomes.
Key Takeaways
- In Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd [2026] QSC 21, the Queensland Supreme Court confirmed that an adjudication decision can be remitted to the adjudicator even after the section 85 time limit has expired.
- The Court reset the statutory clock, directing time under section 85 runs from the remittal order — not the original decision.
- Section 101(3)(b) of the BIF Act (“any other orders it considers appropriate”) is the source of the Court’s remittal power.
- For respondents, winning a judicial review may result in remittal and redetermination — not the end of the dispute.
- For claimants, the BIF Act regime now offers greater protection against attempts to extinguish claims through procedural judicial review challenges.
- This decision will likely reduce the number of parties pursuing judicial review solely on jurisdictional grounds, which commentators have noted is a positive development for the industry.
Frequently Asked Questions
What is BIF Act / SOPA adjudication?
Adjudication under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) is a fast-track, interim process for resolving construction payment disputes. A claimant (typically a subcontractor or contractor) serves a payment claim; if the respondent doesn’t pay or issues a payment schedule disputing the amount, the claimant can apply to have an independent adjudicator determine how much is payable. The process usually takes a matter of weeks, and the decision is immediately enforceable as a debt. It does not prevent the parties from later litigating the final value of the claim.
What is judicial review of an adjudication decision?
If a party believes an adjudicator exceeded their jurisdiction or made a jurisdictional error (for example, by considering material they were not permitted to consider, or failing to exercise their jurisdiction), they can apply to the Supreme Court for judicial review. If successful, the adjudication decision can be set aside. Judicial review does not, however, resolve the underlying merits of the payment dispute — it addresses the legality of the adjudication process. After Tomkins, a successful judicial review is now more likely to result in the matter being remitted for fresh adjudication than simply ending the dispute.
What is remittal in the context of an adjudication decision?
Remittal means the court sends the matter back to the original decision-maker (in this case, the adjudicator) to reconsider and make a fresh decision, correcting the identified error. Rather than the court substituting its own decision or voiding the matter entirely, remittal allows the adjudicator to try again. In Tomkins, the court confirmed that remittal is available under the BIF Act even where the original adjudication timeframe has expired, and that the statutory clock resets from the date of the remittal order.
What should I do if I’ve received an adjudication decision I want to challenge?
Act immediately — there are strict timeframes for payment and enforcement, and delay can prejudice your position. Get specialist legal advice to assess whether grounds for judicial review exist and, crucially, whether pursuing judicial review is commercially worthwhile in light of the Tomkins decision. You should also consider whether the underlying merits favour you and whether pursuing final determination in the courts (rather than relying on judicial review of the adjudication) is the better strategy. The right approach depends entirely on your specific circumstances.
Need advice on a SOPA / BIF Act dispute, adjudication challenge, or construction contract issue in Queensland? Boss Lawyers regularly acts in building and construction disputes, including adjudication proceedings, judicial review applications, and enforcement of adjudication decisions. Call Mark Harley on 1300 267 711 or visit bosslawyers.com.au to discuss your matter.
This is general information only and is not legal advice. You should obtain professional advice specific to your circumstances.
