Security Of Payment Act: How ‘Mandatory’ Are The Mandatory Requirements?

The recent Queensland Supreme Court case of Nebmas Pty Ltd v Sub Divide Pty Ltd [2009] QSC 92 has reaffirmed the New South Wales position that noncompliance with some of the 'mandatory' requirements under the Building and Construction Industry Payments Act 2004 (QLD) (the Act) will not be fatal to a party seeking relief under the Act. The case also confirms an adjudicator's power to determine factual compliance with procedural provisions under the Act, and that errors made by the adjudicator in making their determination will not affect the final outcome.

Facts

Sub Divide, the first respondent in this case, is a subcontractor who made a claim for payment under the Act against the applicant, Nebmas, for building work carried out. Nebmas, failed to serve a payment schedule and failed to pay the whole or any part of the claim by the payment due date. Sub Divide gave notice (second chance notice) to Nebmas that it would apply for adjudication of the claim. The matter