ACT: Claimant Enforces the Decision
The process of converting the adjudication decision to a judgement of the Court and having it enforced is as follows:
- Take the adjudication certificate to the appropriate Court and complete an affidavit form which is available at the Court. In the affidavit you need to swear whether any money has been paid to you by the respondent which would reduce the amount owed by virtue of the adjudication decision.
- With assistance of Court Registry staff, have the adjudication certificate registered as a judgment of the Court. This judgment will result in obtaining a money order.
- Select an option for enforcement of the money order (refer notes below). Legal advice or other assistance may be sought. Court Registry staff cannot assist in this decision.
- Commence enforcement option at the appropriate Court with the assistance of Court Registry staff.
What If the Respondent leaves ACT? If the respondent/defendant has left ACT, it is still possible to pursue them for payment. A 'Notice to the Defendant' is attached to the claimants other enforcement documents which demands the respondent's action regardless of their whereabouts.
Setting aside the Judgment
In rare cases, a respondent may make application to set aside the judgment for the adjudicated amount. However to do so, the respondent must pay into court as security the unpaid portion of the adjudicated amount. This eliminates the advantage, which a respondent had when the respondent could retain the disputed amount while legal proceedings were in progress.
Generally a court is unlikely to intervene to prevent the enforcement of an adjudication decision. Such applications would normally be made to the Supreme Court and are expensive to run and difficult to win. However some grounds on which a court may intervene include:
- there was no construction contract (within the meaning of the Act) between the parties;
- the respondent was not served with a payment claim under the Act;
- the claimant is guilty of fraud.
Generally adjudicator error, unless it goes to grounds of jurisdiction or denial of natural justice, is insufficient to attract court intervention. In most cases it is quicker and more cost effective to comply with the adjudication decision and sue separately for repayment of any alleged overpayment. While in all such matters legal advice should be taken, we strongly advise that the advice is taken from a lawyer familiar with the operation of the Act.
Judicial review of an adjudication decision
Generally a court does not have jurisdiction to set aside or remit an adjudication decision on the ground of error of fact or law on the face of the decision. However an appeal may be made to the Supreme Court on any question of law arising out of an adjudication decision. The appeal must be made by a party with the consent of both parties or with the leave of the Supreme Court. The Supreme Court will not grant leave under subsection unless it considers that:
- Having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more parties to the adjudication decision; and
- There is a manifest error of law on the face of the adjudication decision; or strong evidence that the adjudicator made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of the law.
On the determination of an appeal the Supreme Court may confirm, amend or set aside the adjudication decision or remit the adjudication decision, together with the Supreme Court's opinion on the question of law which was the subject of the appeal, to the adjudicator for reconsideration; or, if a new adjudicator is appointed by the Supreme Court, to that adjudicator for consideration.
If an adjudication decision is remitted, the adjudicator must make the new adjudication decision within 10 business days after the day the decision was remitted or within the time directed by the Supreme Court.
Once the respondent makes full payment to the claimant, including adjudicator fees and any interest, the payment process under the Act is complete.
At conclusion of the process, both the respondent and claimant retain their legal rights to pursue any remaining grievances whether it be by litigation or exercising any other dispute resolution rights as described in the contract.
The payment process under the Act is complete.