This section provides essential guidance to a respondent who has received a copy of an adjudication application and wishes to defend the application.
A respondent can only lodge a submission with the adjudicator (the adjudication response) if the respondent has previously provided a payment schedule to the claimant within:
- 10 business days allowed by the Act after being served the payment claim; or
- 2 business days allowed by the Act after being served a notice from the claimant of the intention to apply for adjudication as a result of the claimant not being paid by the due date of payment and not being provided with an initial payment schedule.
The response must be served on the adjudicator on or before the latter of:
- 5 business days after the respondent received a copy of the adjudication application; or
- 2 business days after the respondent received notice of the adjudicator’s acceptance of the adjudication application.
Neither Adjudicate Today nor the adjudicator may extend these timeframes which are specified by the Act.
CLICK HERE TO DOWNLOAD AN ADJUDICATION RESPONSE TEMPLATE
The respondent’s adjudication response
- Must be in writing.
- Must be addressed to the adjudicator and be received by the adjudicator within time.
- Must at the same time be served on the claimant.
- Must identify the adjudication application that the response relates to.
- Should include full details of reasons given in the payment schedule for refusing to pay or withholding payment of any amount. Documents necessary to evidence or support those reasons should be attached. These may include expert reports and photographs evidencing defective work and statutory declarations from witnesses.
- Must identify any excluded amounts.
- May contain submissions relevant to the response. If documentation other than that provided in the adjudication application is referenced those documents should be attached to the response.
- May respond to issues raised in the adjudication application. Such issues could include the fact that the claimant is not entitled to claim amounts additional to those in the payment claim or to change the payment claim.
- If the respondent claims that the adjudication application is not valid for any reason, a full explanation should be given.
- Must include the name and address of any relevant principal.
- Must identify any amount which is an "excluded amount".
Submissions are essentially arguments in support of the respondent’s case. They may include legal arguments, arguments on the interpretation of the contract or other documents. Documents that are submitted usually don’t speak for themselves. The submission should explain why a document has been submitted. Don't assume that the reason for submitting a document will be obvious to the adjudicator. The adjudicator cannot be expected to accept that something said by the respondent in a letter or minutes of a meeting or other document is true. In the submission, the respondent can state that it is true but if the respondent fails to do so the adjudicator might draw the inference that the respondent is not prepared to argue that the statement is true.
The adjudicator must decide an adjudication application within:
- 10 business days after the date upon which the adjudicator accepts the adjudication application; or
- Such further time as agreed by the claimant.
If the respondent fails to pay the whole or any part of the adjudicated amount by the 'relevant date', the claimant may:
- Ask the ANA (Adjudicate Today) to provide an "adjudication certificate"; and/or
- Suspend future work or the supply of goods or services by giving 3 business days notice of such intention.
The "relevant date" is 5 business days after the respondent receives the determination or such later date as the adjudication decision may determine. (See also Adjudication Review Application)
In the event the claimant obtains the adjudication certificate and files an affidavit of debt in a court of competent jurisdiction, the claimant is entitled to obtain a judgement from the court against the respondent.
