NSW: Adjudication Determination

In reaching a determination, the adjudicator must only consider:

  • The Building and Construction Industry Security of Payment Act 1999 (NSW);
  • 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 further submissions which the adjudicator allows the parties to make.

An adjudicator may seek further submissions from a party. In this case very strict deadlines will be set as a call for further submissions does not extend the statutory time requirements unless agreed by the parties. An adjudicator will give the other party an opportunity to respond. Sometimes a party may seek the opportunity to make a further submission. Approval is at the total discretion of the adjudicator.

The adjudicator may decide that a conference and/or an inspection is required before finalising a determination.

The adjudicator will determine 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
  • The proportion of adjudication fees payable by each party.

If the work or goods or services has already been valued in a previous adjudication, the same value must be attributed, unless the adjudicator is satisfied that the value has changed since the previous adjudication.

An adjudicator can't determine that the claimant will pay the respondent money. However set-offs or deductions to the value of the claimant's payment claim may be decided. Similarly an adjudicator will not award an amount greater than the amount claimed in the payment claim.

Time frames:

The adjudicator must determine the adjudication application within 10 business days from the date of the adjudicator's acceptance of the adjudication application, or such further time as agreed by the claimant and respondent.

An adjudicator cannot make a determination prior to the expiration of the period for the respondent to submit an adjudication response.

Process:

The adjudicator's written determination is forwarded to Adjudicate Today who bills the claimant and serves the determination on both the claimant and the respondent. The determination is not released until the adjudication fees (which include a service fee paid by the adjudicator to Adjudicate Today) have been fully paid.

Please move to the next step on the NSW flowchart being "Respondent must pay any adjudicated amount either within 5 business days of service of the Determination on the Respondent or by Due Date of Payment, whichever is the latter

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