Failure to serve the payment schedule within time has the serious consequence of denying the respondent the opportunity to make any submissions (the adjudication response) to the adjudicator. Often, but not always, an adjudicator confronted with no submissions from the respondent may determine that the claimant is entitled to the full amount claimed.
Secure in the knowledge that the respondent is being effectively punished by the Act for not providing written responses to the payment claim, the claimant has fulfilled the pre-adjudication notification requirements of the Act and may prepare the adjudication application.
Is there anything at all that a respondent can do?
An adjudicator may only determine an adjudication application which is within the jurisdiction of the Act. Therefore the claimant must satisfy the adjudicator of certain key components in any claim, including:
- The payment claim and s17(2) notice was served on the respondent's normal place of business or otherwise as specified in any contract and within the time requirements of the Act;
- There was a construction contract in existence between the parties for work in the State of New South Wales;
- Work was performed under the contract which remains unpaid;
- The rate at which the work is to be remunerated and how the total amount claimed is calculated.
A respondent may seek to place a submission to the adjudicator on issues going to jurisdiction including but not necessarily limited to:
- The payment claim and/or s17(2) notice was NOT served on the respondent's normal place of business or otherwise as specified in any contract and/or was NOT served within the time requirements of the Act;
- There was NO construction contract in existence between the parties for work in the State of New South Wales;
- Work was NOT performed under the contract which remains unpaid.
How an adjudicator responds to such a submission from the respondent is a matter for him or her to determine; however Adjudicate Today adjudicators will generally call for submissions on the limited point. They will not permit (as this is precluded by the Act) parties to present argument beyond the limited point. If a party provides a submission beyond the limited point, the Act requires that such further argument be not considered.
Please move to the next step on the NSW flowchart being "The Adjudicator has 10 business days from the date of the Application to determine it. Time may be extended by agreement of both parties".
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