NSW: Adjudication Response Not Permitted
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. With no evidence to rebut the claimant's position, the adjudicator will often, but not always, determine that the claimant is entitled to the full amount claimed.
Is there anything that a respondent can do?
An adjudicator may only determine an adjudication application which is within the jurisdiction of the Act. Failure to provide a payment schedule does not automatically mean the claim will be successful. An obligation still rests with the adjudicator to consider the requirements of the Act, and be satisfied that work has been done and is properly valued. Therefore the claimant must satisfy the adjudicator of certain key issues, including:
- The payment claim and s17(2) notice were served on the respondent's normal place of business or otherwise as specified in the Act and/or the contract and within the time requirements of the Act;
- There was a construction contract 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 the Act and/or the contract; 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;
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 issue of jurisdiction. If a party provides a submission beyond the issue(s) requested by the adjudicator, such further arguments are generally not considered.
Please move to the next step on the NSW flowchart being "Adjudication Determination. The Adjudicator has 10 business days to determine the Adjudication Application from the date of receipt of the Adjudication Response or the date the Response would have been due or, if the Respondent has no right to serve an Adjudication Response, 10 business after the Adjudicator's notice of acceptance is served on the Claimant and the Respondent. Time may be extended by agreement of both parties."