Last week, the Supreme Court handed down its decision in Tomkins Commercial & Industrial Builders Pty Ltd v Starline Interiors Pty Ltd [2026] QSC 21, a significant case for participants in adjudication under the Building Industry Fairness (Security of Payment) Act 2017 (Qld).
The key issue was whether the Court can remit an adjudication decision back to the adjudicator after finding jurisdictional error – even where the statutory time for making the decision has expired.
The Court held that it can.
While remittal is orthodox in other areas of law, it has rarely been exercised in the Queensland security of payment context. In particular, there has been uncertainty about how it could operate where adjudication time limits – consistently treated as jurisdictional – had already passed.
Tomkins resolves that uncertainty.
The Court held that s 101(3)(b) of the BIF Act – permitting “appropriate orders” – is broad enough to allow remittal notwithstanding the expiry of the decision timeframe.
Importantly, the Court expressly “reset” the statutory clock for the new decision, directing that time under s 85 run from the date of the remittal order. That step appears to avoid any suggestion that the redetermined adjudication would itself be vulnerable as being out of time.
That clarification matters.
From a practical perspective, the strategic calculus of judicial review shifts. Even where jurisdictional error is established, the likely result may now be remittal and redetermination – not voiding / severance of offending aspects of the adjudicator’s decision.
In commercial terms, judicial review may delay payment but may not avoid it.
For principals, contractors and subcontractors alike, the message is clear – success in the Supreme Court does not necessarily end the dispute; it may simply reset it.
It will be interesting to see how broadly this reasoning is deployed in future challenges, and whether appellate consideration follows.
If you would like to discuss how this decision may impact your current or future adjudication strategy, please feel free to get in touch.
This article was co-authored by Partner, Alex Nordang and Senior Associate, Nick Thomas.
