NSW: Adjudicator's Determination
The adjudicator must determine an adjudication application:
- as expeditiously as possible and within 10 business days from the date on which the adjudicator accepts the adjudication application; or
- Such further time as agreed by the claimant and respondent.
An adjudicator cannot make a determination earlier than the date of expiration of the period allowed for the respondent to submit an adjudication response.
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 also give the other party opportunity to comment on the submission. Sometimes a party may seek the opportunity to make a further submission. Approval is at the total discretion of the adjudicator. In such circumstances, adjudicators regularly make their consent conditional on both parties agreeing to extend the time for the adjudicator to make the determination.
The adjudicator may decide in his or her discretion that either a conference or an inspection or both is required before finalising a determination.
The need for a conference may arise for a number of reasons: for example, to clarify submissions, supporting material or calculations of either party, to elicit comments by either party on submissions, to decide if further submissions are needed or to establish whether there is a need to carry out an inspection.
If a conference is required, Adjudicate Today will notify both parties of the proposed conference date, time and location and the purpose of the conference to ensure that all parties are properly prepared. The adjudicator's ability to make a determination is not affected by failure of one or more parties to attend the conference or make submissions or comments.
The adjudicator cannot act as a mediator or arbitrator during the conference or at any other time prior to making a determination. However the parties may, through agreement, extend the period for the making of the adjudicator's determination and during this extended period apply to Adjudicate Today for the appointment of a mediator.
An adjudicator is also entitled to carry out an inspection of any matter to which the payment claim relates. An inspection will normally only be held where it is considered essential for a finding on a party's written submission. An inspection can include a site visit of the construction work or inspection of related services or goods provided, documents, reports, plans or papers, relating to the payment claim.
The adjudicator will inform the claimant and respondent of what and when he/she intends to carry out an inspection. All the parties should be present at the inspection. Only the parties themselves can make any comments at the inspection on written submission already provided to the adjudicator. Comments or submissions by others such as consultants or witnesses can't be sought or considered by the adjudicator.
In reaching a determination, the adjudicator will 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.
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.
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