Adjudication is a process initiated by a claimant who believes they are entitled to be paid for construction work or for the provision of related goods and services. The claimant has served a valid payment claim against a respondent and either:
- Received a payment schedule over which there is disagreement;
Payment Schedule Served flowchart;
or
- Not received a payment schedule and served the notice of optional adjudication giving the respondent a further 2 business days to provide a payment schedule following which there was either no response within time or receipt of a payment schedule over which there is disagreement.
Payment Schedule NOT Served flowchart.
To initiate the adjudication process a claimant must lodge an adjudication application (see section headed "The Adjudication Application") with an ANA such as Adjudicate Today and provide an identical copy to the respondent at the same time. The Act provides that for an application to be valid, the ANA's application fee must accompany the application. However as Adjudicate Today does not charge an application fee, this provision has no effect in relation to applications made to us.
Upon receipt of the application, Adjudicate Today nominates an appropriate adjudicator from their panel of registered adjudicators to determine the matter. Adjudicators cannot be pre-appointed under a construction contract and may only be appointed by an ANA to adjudicate on a claim. Parties have no right to attempt to influence the ANA in the selection of the adjudicator.
Within 4 business days of receipt of an application, Adjudicate Today will provide a formal Notification of Acceptance of the adjudication application on behalf of the appointed adjudicator. If this does not occur the claimant can withdraw the application and has a further 5 business days to lodge an application with another ANA.
If a payment schedule has been provided within time, the respondent is eligible to submit an adjudication response (see section headed "The Adjudication Response"). The response should be submitted either:
- Within 5 business days after receiving the adjudication application from the claimant; or
- 2 business days after receiving the Notification of Acceptance of an adjudication application whichever is the later.
The adjudicator must decide an adjudication application within:
- 10 business days after acceptance of the adjudication application; or
- Such further time as agreed by the claimant.
In reaching a determination the adjudicator must consider the following matters only:
- The Building and Construction Industry Security of Payment Act 2002;
- The contract (oral or written);
- The payment claim;
- The payment schedule (if any)
- The adjudication application;
- The adjudication response (if any);
- The results of inspections (if any); and
- Any other submissions (including relevant documents and submissions made at a conference, if any, called by the adjudicator) which the adjudicator allows the parties to make.
The adjudicator may decide in his or her discretion that either a conference or an inspection or both is required before finalising a determination. Adjudicators rarely call a conference or have an inspection. Adjudication is usually wholly on the written documents.
If a conference is required, Adjudicate Today will notify both parties of the proposed conference date, time and location and the purpose of the conference to ensure that all parties are properly prepared. The adjudicator’s ability to make a determination is not affected by failure of one or more parties to attend the conference or make submission or comments. Only the parties themselves can make any comments at the inspection on written submission already provided to the adjudicator. Comments or submissions by others such as consultants or witnesses cannot be sought or considered by the adjudicator.
The adjudicator cannot act as a mediator or arbitrator at any time prior to making a determination. However the claimant may extend the period for the making of the adjudicator's determination and during this extended period apply to Mediate Today Pty Ltd (a related company to Adjudicate Today) for the appointment of a mediator.
- The adjudicator will decide the following:
- The amount of the progress payment, if any, which the respondent must pay the claimant;
- The date on which the amount became or becomes payable;
- The rate of interest payable on such amount; and
- If parties are to pay the adjudication fee other than in equal shares, the proportion payable by each.
If, in a previous adjudication, the adjudicator or another adjudicator has determined the value of work, goods or services, the adjudicator must give that work, goods or services the same value, unless the adjudicator is satisfied that the value has changed since the previous adjudication.
The adjudicator's determination is in writing and, unless both parties request otherwise, include reasons. It is forwarded to Adjudicate Today who bills the claimant and serves the determination on both the claimant and the respondent. However service may be delayed until the adjudication fees have been fully paid.
If the respondent doesn't pay the determined amount (which includes any interest and adjudication fees) within 5 business days after the respondent receives the determination or such later date as may be determined by the adjudicator, the claimant can apply to Adjudicate Today for an adjudication certificate (see section headed "Requesting an Adjudication Certificate"). The claimant may also give 3 business days notice of intention to suspend work.
The adjudication certificate is the culmination of the adjudication process. It is the method by which the claimant enforces the determination, including payment of any interest and adjudication fees. Most adjudicators will award interest to successful claimants and also determine that the adjudication fees (either in whole or part) should be paid by the respondent.
The claimant can file the adjudication certificate in the appropriate court as a judgment debt. The claimant must support the certificate with an affidavit stating that the whole or a part of the adjudicated amount (including interest and adjudication fees) has not been paid at the time the certificate is filed. The judgment debt is then enforceable in the same way as any court judgment, without time consuming and often expensive court hearings of the matters in dispute.
If the adjudicated amount exceeds $100,000 there is a limited right for a claimant or respondent to apply to Adjudicate Today for a review by a second adjudicator. See Adjudication Review Application.
