Major Projects & Construction 5 Minute Fix 140: automated emails, arbitration agreements, arbitral awards, and GC21 monetary thresholds

Reminder emails can set reference dates, and 24 minutes late won't void a decision

In CGC Qld Pty Ltd v Ziegel Co Pty Ltd [2026] QSC 224, the head contractor (CGC) sought a declaration that an adjudication decision was void for jurisdictional error. Each of the three grounds relied upon failed:

1. Existence of "construction contract": Although the parties had not entered into a formal construction contract, most of the work claimed in the relevant payment claim was valued using rates supplied by the subcontractor (Ziegel), which had formed the basis of earlier payments made by CGC. Hindman J held that this constituted an "other arrangement" between the parties, because it displayed the necessary qualities of a sufficiently concluded, bilateral state of affairs. Her Honour observed that she might have reached a different conclusion if there had been no agreement about the valuation of the work, or if the agreed valuation methodology had been on a quasi-quantum meruit basis.

2. Agreement about reference date: The reference date was able to be worked out from informal "automatic reminder to submit your claims" emails and the parties' course of conduct in submitting such claims (a) on or after the relevant date (with only one exception), and (b) for work carried out up to that date.

3. "Properly made" further written submissions: CGC's third ground for setting aside the adjudication decision was that the adjudicator had considered further submissions delivered by Ziegel 24 minutes after the deadline the adjudicator had set for them. While the statutory deadlines are strictly enforced, an adjudicator has a discretion to extend deadlines that the adjudicator has set. Hindman J held that the adjudicator was therefore entitled to treat the late submissions as "properly made".

Arbitration Agreements: Courts Confirm "Light Touch" Approach

A recent Victorian decision underscores the courts’ commitment to supporting, rather than supplanting, the arbitral process.

In Zoo Property Wealth Builder Pty Ltd v Australia Red Hill Real Estate Group Pty Ltd [2026] VSC 509, Croft J appointed an arbitrator under s 11(3)(b) of the Commercial Arbitration Act 2011 (Vic) (CAA), despite the respondent’s allegation that the arbitration agreement was invalid and of no effect. His Honour emphasised the principle of minimal judicial intervention, confirming that, at the appointment stage, the Court’s role is limited to determining whether an arbitration agreement exists on a prima facie basis. Any challenge to the agreement’s validity is reserved for the arbitral tribunal.

The judgment reinforces three key principles of arbitration law:

1. Appointment power is administrative, not adjudicative: Section 11 of the CAA is a "gateway, not a trial", requiring only a prima facie finding that an arbitration agreement exists (cf s 8 of the CAA, which empowers the Court to find that the arbitration agreement is null and void).

2. Kompetenz-Kompetenz principle: Section 16(1) of the CAA empowers the arbitral tribunal to rule on its own jurisdiction, including challenges to the existence or validity of the arbitration agreement. Disputes over validity should be determined by the tribunal in the first instance, as confirmed in Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442 and Oil Basins Ltd v Esso Australia Resources Pty Ltd (2026) 400 FLR 348.

3. Separability of arbitration clauses: An arbitration agreement is separable from any broader contract in which it appears. Even if a challenge to the validity of the arbitration agreement also impugns the validity of the underlying contract, that challenge is to be determined by the arbitral tribunal in the first instance.

Supreme Court of Victoria Upholds Australia's Robust Approach to Enforcing Arbitral Awards

Australian courts continue to take a strong pro-enforcement stance on arbitral awards.

In Simple Investments Pty Ltd v Bradley St Development Vic Pty Ltd [2026] VSC 510, the applicant sought orders that the arbitral awards be enforced against the respondents. The respondents contended that enforcement should be refused under s 36 of the CAA, on the basis that the respondents had been unable to present their case, or the arbitrator had decided matters outside the scope of the arbitration, or enforcement would be contrary to public policy.

In enforcing the awards, Croft J held that:

• The threshold for an award to be contrary to public policy is deliberately high and "not readily overcome".

• The claim was within the "four corners" of the arbitration. The misappropriation allegation was squarely pleaded, and the respondents were on notice of it but chose not to lead evidence in answer.

• A list of issues is "not an exam paper". Where a claim is properly pleaded, the arbitrator is not confined to the agreed list of issues. An issue outside the list but within the pleadings remains within the scope of the submission to arbitration.

• Forensic failures are not procedural unfairness. A party's own forensic or strategic choices, such as withholding documents that might have helped its case, will not found a complaint of procedural unfairness.

• The court's curial role is limited. Enforcement proceedings are not an invitation to revisit the merits. A party must be able to demonstrate real unfairness "tolerably shortly", not through a detailed re-examination of the facts.

Expert determination under the NSW Supreme Court's microscope

Built Pty Ltd v State of New South Wales [2026] NSWSC 1147 concerned an expert determination clause that:

• allowed the parties to refer "an Issue" to an expert; and

• precluded the parties from commencing litigation in respect of the matters determined by the expert unless the determination required one party to pay the other an amount in excess of $500,000.

Rees J held that the monetary threshold for proceeding to litigation after expert determination applies to each Issue determined by an expert, and not the cumulative result of all Issues determined by an expert. Otherwise, her Honour observed, a party would be able to "bundle all disputes together, such that the resulting litigation involves all disputes, great and small", which would defeat "[t]he purpose of filtering minor disputes by use of a threshold".

Parties should be alert to dispute resolution clauses that prevent a party from escalating a dispute unless the amount in dispute exceeds a specified monetary threshold. Where such a clause is proposed, parties should consider carefully its drafting and what threshold is appropriate, having regard to the likely value and nature of disputes under the contract.