NSW: Claimant NOT Paid, Prepares and Serves Adjudication Application

This section provides guidance for the claimant in completing an adjudication application where the respondent has failed to provide a payment schedule despite having been served with a section 17(2) second opportunity notice and failed to pay the claimed amount.

What happens now?

The adjudication application must be prepared and served by the claimant on Adjudicate Today within 10 business days after the expiry of 5 business days from the respondent's receipt of the section 17(2)] notice. An identical application must also 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.

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:

• Be in writing addressed to Adjudicate Today;
  
• Be lodged with Adjudicate Today within 10 business days from service of the s.17(2) notice on the respondent;
• Attach a copy of the payment claim;
  
• Attach a copy of the optional adjudication [s.17(2)] notice;
• Attach a copy of the contract or all relevant contract terms and conditions. This may be a formal contract document, an exchange of letters, a quotation, an acceptance or a record of an oral agreement (such as email) under which the payment claim is made;
• Contain a written submission demonstrating that the claimed amount is due and unpaid and the value of the work, materials or services for which payment is claimed. 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);
• In the absence of a payment schedule, there is no reason to speculate on possible reasons for non-payment of a claim. To do so places matters before the adjudicator which the Act prevents the respondent from raising;
• Attach to the written submission all the information (including certificates, test results, delivery dockets, invoices, dated photographs, statutory declarations, expert reports, written statements and arguments) which the claimant wants to put to the adjudicator in support of the payment claim;
• State the date from when you claim to be entitled to be paid;
• State whether you wish interest on any amount determined by the adjudicator;
• Ensure that submissions do not contain emotional words or language derogatory or defamatory of the respondent.

The adjudication application needs to satisfy the adjudicator that the work claimed was in fact done and/or related goods and services were supplied as required by the provisions of the contract or email supporting the agreement between the parties. Clearly set out the calculations detailing how the amount claimed is made up by items/value with a total, including GST, and relate these calculations back to the contract/agreement provisions.

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.

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 in accordance with the NSW Electronic Transactions Act 2000 Section 8 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.

How is an adjudication application served on Adjudicate Today?

When making your adjudication application you have 2 alternatives:

1. Use our interactive lockbox which provides assistance for each necessary step, or;
2. Complete the application manually using our adjudication application form (this can also be completed on your computer).

We recommend service on Adjudicate Today by our lockbox. It is faster and more secure than email and has no limit to the file sizes. 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

Other alternatives:

1. Electronic File Delivery via Email for files under 5 MB. nsw@adjudicate.com.au.
2. Electronic File Delivery via Fax: 1300 760 220. 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.
   
3. 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, the adjudication application must be provided to 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.

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 must keep a record of the time, date and manner of service on the respondent. The time for the respondent to provide the adjudication response runs from the date of receipt of the adjudication application or receipt of the adjudicator's acceptance of the application, whichever later. 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 another application.

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 being "Respondent has no right to serve an Adjudication Response as did not serve a Payment Schedule within 5 business days of receipt of Adjudication Notice [s.17(2) notice]".

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