NSW: Claimant Enforces the Determination

This section describes the process of converting an adjudication determination to a judgement of the Court and having it enforced.

1. 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 determination.
2. With assistance of Court Registry staff, have the adjudication certificate registered as a judgement of the Court. This judgement will result in obtaining a money order.
3. 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.
4. Commence your chosen enforcement option at the appropriate Court with the assistance of Court Registry staff.

Step 1

The adjudication certificate and affidavit of debt must be filed in a court of competent jurisdiction. The appropriate court depends on the amount of money sought:

• Local Court not exceeding $100,000;
• District Court for amounts exceeding $100,000 but not exceeding $1,250,000;
• Supreme Court in excess of $1,250,000.

When completing the affidavit form:

• Indicate the court where the affidavit is being lodged i.e. Local Court, District Court or Supreme Court.
• The affidavit is to be filed with the adjudication certificate. It must be sworn on the day the adjudication certificate is filed in court. Usually, there will be an officer of the Court before whom the affidavit can be sworn. It can also be sworn before a Justice of the Peace or a solicitor.

Step 2

Once you have determined the appropriate Court to register a Certificate of Judgment (money order) or other Judgment order you will need to complete, and file, the following form:

• Form 45 - Registration/filing of certificate of judgment or order.

Relevant forms and information regarding registration of the certificate is available on the NSW Uniform Civil Procedure Rules – Civil Forms website. Documents may be filed using the website, by email or post, or in person to the relevant Court. Enquiries should be directed to the relevant court or the NSW Courts Service Centre at 1300 679 272.

In accordance with section 25(2) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (‘the Act’), an affidavit must accompany the original adjudication certificate being filed at the Court. Download template of an Affidavit of Debt.

Please note, registration of the certificate incurs a filing fee, payable at the time of filing the document.

Step 3

The type of enforcement proceedings that may be undertaken depends on whether the respondent is an individual or a company.

Enforcement against an individual:

Money orders against individuals may be enforced by an:

a) Enforcement hearing, or

b) Enforcement warrant.

The claimant may also use the money order to pursue bankruptcy proceedings in the Federal Magistrates Court.

a) Enforcement Hearing Summons:

If the claimant has little or no knowledge of the financial status of the respondent, the claimant may apply to the Court for (or the Court Registrar may order) an enforcement hearing to obtain the necessary information.

At an enforcement hearing, the respondent must attend Court and give information, answer questions, produce documents and complete a statement on oath of that person's financial position. This may also include a director of a company.

b) Enforcement warrants:

Once the necessary information is known, an enforcement warrant may be applied for. It may take various forms including:

1. Seizure and Sale of Property: An enforcement officer may take possession of the respondent's property and sell it by public auction. This includes all real and personal property in which the respondent has an interest, other than exempt property. Proceeds from the auction are then paid to the claimant to satisfy the debt.
2. Redirection of Debts: The Court may order that the debts payable to the respondent by a third party be redirected to the claimant. The third party must pay the debt in accordance with the Court order.
3. Redirection of Earnings: The Court may order that earnings (including wages, bonuses, commission and overtime pay) payable to the respondent be redirected to the claimant. This does not apply to social security payments.
4. Payment of a Money Order by instalments: This enables the respondent to pay the debt in a series of payments over a period of time.
5. Charging Orders: The Supreme Court may order that all or part of the respondent's legal or equitable interest in certain property, such as debentures, shares, stocks or securities be subject to a charge. Accordingly, the claimant becomes a secured creditor of the respondent.
6. Stop Orders: A stop order prevents the payment, delivery or transfer of money or security without notice to the claimant.
7. Appointment of a Receiver: The Supreme and District Courts may appoint a Receiver to receive the debt if it is impractical to enforce payment in any other way.

A creditor may apply for an enforcement warrant without notice to the respondent.

Enforcement against a corporation:

In addition to the procedures above, and with the exception of bankruptcy, the money order may be enforced by serving a statutory demand on the respondent corporation. If the corporation does not pay the adjudicated amount within the period for compliance, the corporation is taken to have failed to comply with the statutory demand and an application may be made to the Supreme Court to wind up the corporation in insolvency.

On application, the Court may appoint an external administrator, such as a Liquidator, Provisional Liquidator or Receiver, to the corporation pursuant to the provisions of the Corporations Act 2001. In essence, the effect of the provision of an external administrator to the corporation is that the daily administration of the corporation is taken out of the hands of the directors. The external administrator will determine whether sufficient funds exist for payments to be made to creditors of the corporation.

Step 4

Court registry staff can assist in the commencement of enforcement action, however they will not assist in the selection of the most appropriate method of enforcement.

Choice in deciding how to enforce the money order created as a result of the judgment may require independent advice. This advice does not necessarily need to be of a legal nature, although if the money order is for a substantial amount, it may be best to consult with a lawyer.

If the claimant is a member of an industry association, the association may be able to provide assistance. There are also industry consultants that will provide assistance and guidance for a fee.

Adjudicate Today staff are not trained to provide information on enforcement options and can't assist in this regard.

What if the Respondent leaves NSW?

If the respondent/defendant has left NSW, 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.

Process Complete

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.

Payment Withholding Request

If the claimant served a payment withholding request on a principal and the claimed amount is being withheld by the principal then action for recovery can be commenced under the Contractor's Debt Act.

Tell me more about the Contractors Debts Act 1997

The payment process under the Act is complete.

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.

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.

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.

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