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NSW: Claimant Prepares Adj Application (Not Paid per Payment Schedule)

Authorised Nominating Authority

This section provides guidance for the claimant in completing an adjudication application where the claimant has received a payment schedule but was not paid by the due date for payment.

Our due date for payment flowchart is available here and will assist you calculate the due date of payment under a contract.

What happens now?

The adjudication application must be prepared and served by the claimant on Adjudicate Today* within 20 business days after the expiry of the due date for payment. An identical application must be served on the respondent. A delay in serving the identical adjudication application on the respondent will cause a delay in the commencement of the adjudicator commencing work on determining the application.

*Note: The adjudication application must be made to the ANA of the claimant's choice. A contract provision which nominates an ANA has no effect.

Your Lockbox

Adjudicate Today knows that making adjudication applications which comply with the requirements of the Act can be challenging.

You need to indicate the amount owed, describe the items and quantities of the work or service provided and, if applicable, attach necessary documents e.g. the contract, completion certificates, dockets confirming the receipt of goods. There are rules about when adjudication applications can be made. If you make a claim about residential work, there are more rules. While we encourage you to read below, our online wizard is available to walk you through each step in making and serving a valid adjudication application.

Our wizards are smart but to use them you need to establish a free and no obligation 'Lockbox'. The Lockbox is yours and can't be accessed by Adjudicate Today staff or anyone else without your express permission. Adjudicate Today does not charge for creating your Lockbox or using our wizards. Your Lockbox allows you to save and print the adjudication application. If generating your adjudication application via your Lockbox Wizard, a PDF document will be generated which contains a link to the files in your Lockbox for this particular adjudication application. If service of the adjudication application is agreed to between the parties by Lockbox or electronic link, then you may download and send this PDF document to the other party. If service of the adjudication application is agreed to between the parties by email, then you must download all files in the link in this PDF and send those files as an attachment to the email. You must otherwise download all files, print them and provide them to the Respondent, preferably by courier. The Lockbox can remind you when payments are overdue. To use your Lockbox and access Adjudicate Today wizards click here, otherwise continue to read below for manual assistance in making a adjudication application and/or clarification of any uncertainties in completing our online adjudication application wizard. In all cases, the Claimant MUST make its own enquiries to satisfy itself of the most suitable method of service.

If still uncertain, our staff are available on 1300760297.

The adjudication application

The adjudication application, with accompanying submissions, should:

  1. Contain a written submission demonstrating that the claimed amount is due and unpaid and how the value of the work, materials or services for which payment is claimed is calculated. GST should be included in the calculations. The submission should state that the work was in fact done and/or related goods and services were supplied as required by the contract or agreement in accordance with the identified items and conditions of the contract (if possible, refer to the specific paragraph in the contract).
  2. Respond to the reasons, if any, given by the respondent for non-payment and must provide evidence or arguments to support your view. An adjudication application should not speculate on possible reasons for non-payment of a claim if they are not included, or alluded to, in the payment schedule.
  3. Set out in separate numbered paragraphs the arguments with logical reasons as to why you are entitled to receive the amount claimed as a progress claim. Refer back to any relevant material supporting each argument and quote the specific attachments (e.g. see Report dated... Attachment A etc.).
  4. If possible, obtain witness statements or other technical reports, test results, dated photographs, invoices (from suppliers, quality assurance statements, statutory declarations of payment of workers subcontractor etc) and/or other documentation which supports the claim and provide these as numbered attachments. This is particularly important for larger claims. These attachments should show that the work and/or related goods and services being claimed was performed in a manner consistent with the contract or agreement.
  5. State the work performed is building and construction work as defined by the Act.
  6. Attach a copy of the payment claim.
  7. Attach a copy of the payment schedule.
  8. Attach a copy of the contract. If the contract or agreement is wholly or partly oral, set out the precise terms of the oral agreement, when it was made and the named person who entered the contract on behalf of the respondent. Attach a copy of any emails, correspondence or paid invoices supporting the oral agreement.
  9. Include any legal advice and/or opinion which supports the claim which referred to in the submission (a legal opinion is not necessary to make an adjudication application).
  10. State the date from when you claim to be entitled to be paid.
  11. State whether you wish interest on any amount determined by the adjudicator.
  12. Ensure that submissions do not contain emotional words or language derogatory or defamatory of the respondent.

The overall submission should be concise, clearly written and set out the claimant's arguments and reasons. It is helpful to include a background to the dispute. Remember the submission should always link back to any agreement/documentation, dated photographs, technical/legal reports which support the claimant's entitlement as set out in the payment claim. An adjudication application should not speculate on possible reasons for non-payment of a claim if they are not included, or alluded to, in the payment schedule.

The adjudication application must be served upon the respondent. Sometimes rapid service on the respondent can be difficult. The Adjudicate Today wizard overcomes the difficulty by facilitating electronic service. Use of the wizard also ensures the adjudication application copy provided to the respondent is identical to that provided to Adjudicate Today.

The Act requires the payment of an ANA's prescribed application fee when the application is lodged. The prescribed application fee charged by Adjudicate Today is NIL ($0:00) dollars.

Complete the application manually using our adjudication application form (this can also be completed on your computer).

How is an adjudication application served on Adjudicate Today?

Both Adjudicate Today and the respondent should be served with identical adjudication applications.

Service on Adjudicate Today can be made by any of the following methods:

  1. Electronic File Delivery via Lockbox. You can send very large electronic files directly to Adjudicate Today. All files are sent over a secure connection. They are held in your personal 'Lockbox'. Only you and Adjudicate Today authorised staff can access your Lockbox. We strongly recommend it over email as email may not be received. All uploaded files are acknowledged by an automated email within a couple of minutes. If the date and time stamped email is not received, there has been a problem uploading. Please email our office: nsw@adjudicate.com.au or phone 1300 760 297. Click here for details on establishing a free Lockbox account.
  2. Electronic File Delivery via Email. nsw@adjudicate.com.au. Maximum file should be limited to 5 MB.
  3. Electronic File Delivery via Fax: 1300 760 220. Adjudicate Today permits service of adjudication applications, notices and other documents by fax. Adjudicate Today permits service of adjudication applications, notices and other documents by fax.
    Following any form of electronic file delivery (Lockbox, email or fax), the claimant may be requested to provide Adjudicate Today with one (1) hard copy of any electronic files. Please read our disclaimer for details on rights and obligations for the delivery of electronic files.
  4. Physical Delivery. We accept delivery in any of our Australian offices (normal business hours). Our NSW address is Suite 2, Mona Vale Business, 90 Mona Vale Road, Mona Vale 2103. A map to the NSW office and addresses of other State offices are found on our Contact Us page.

How is an adjudication application served on the respondent?

Unless otherwise agreed by the parties, service should occur on the respondent during normal business hours at the respondent's ordinary place of business or in accordance with the NSW Electronic Transactions Act 2000 Section 8. Your lockbox may be used to electronically serve documents in accordance with the NSW Electronic Transactions Act 2000.

A delay in serving the identical adjudication application on the respondent will cause a delay in the commencement of the adjudicator commencing work on determining the application.

In our experience, below is the safest ranking to ensure service:

  1. Use your lockbox to send the adjudication application to the respondent if there is an agreement between the parties for service via lockbox or link
  2. Courier - signature required
  3. Mail - Express Post: keep express post tracking number for delivery verification
  4. Platinum Post - Signature required
  5. Ordinary Post - Make a statement verifying the address, date of postage and other relevant details
  6. Email (only to an email address which is specified by the person for the services of documents of that kind - generally the respondent). In email options, we advise tick both "request a delivery receipt" and "request a read receipt". All documents must be downloaded and attached to the email as an attachment, unless there is an agreement to service by a link.
  7. In person - Ensure a receipt is obtained or
  8. A different method only where such method is provided under the relevant construction contract. Please note that service by fax is only valid if provided by the contract. If service by fax is permitted, print and keep full page fax journal report as evidence of transmittal.

Tips:

  • Claimants are strongly advised to keep a record of the time, date and manner of service on the respondent. A respondent may deny receipt of the payment claim in which case the claimant must be able to evidence the date of service.
  • When items are sent by ordinary post, allow sufficient time for them to be received. Generally, items sent by ordinary post are taken to have been effected on the seventh working day after the letter was posted. We recommend against post as respondents have denied receipt.
  • Should fax be permitted by contract as a form of service, ensure you retain the full page fax receipt and refrain from sending colour photographs, and plans as they are generally rendered unreadable. Lengthy faxes have been known to lose pages in transmission.

Upon receipt of the application, Adjudicate Today nominates an appropriate adjudicator from our panel of adjudicators to determine the matter. Adjudicators cannot be pre-appointed under a construction contract and parties must not seek to influence an ANA in appointing any particular adjudicator. However if parties agree to the appointment of a particular adjudicator after the adjudication application is filed, Adjudicate Today will seek to accommodate the agreement.

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.

In addition, the Act allows subcontractors who make an adjudication application to freeze payments to the value of the claimed amount from the principal contractor to the respondent while adjudication proceeds. This is called a payment withholding request.

That seems interesting, tell me more about a payment withholding request.

Please move to the next step on the NSW flowchart which is "Respondent has 5 business days to prepare & serve the Adjudication Response on Adjudicate Today & Claimant from receipt of Adjudication Application from Claimant or 2 business days after receiving notice of Adjudicator's acceptance of the Application, whichever is the later"

Ensure you remain in the area of the flowchart with blue background.