NSW: Respondent Prepares Adjudication Response

This section provides guidance for the respondent in completing an adjudication response to an adjudication application arising either from a valid payment schedule over which there is disagreement or where the respondent failed to pay the scheduled amount by the due date for payment.

Time frames

An adjudication response must be served on the adjudicator on or before the later of:

• 5 business days after the respondent received a copy of the adjudication application; or
• 2 business days after the respondent received notice of the adjudicator's acceptance of the adjudication application.

Neither Adjudicate Today nor the adjudicator may extend these time frames which are specified by the Act. An adjudicator can't consider an adjudication response which is received late.

Your Lockbox

Adjudicate Today knows that making an adjudication response which complies with the requirements of the Act can be challenging.

There are rules about when adjudication responses can be made and the documents to be provided. While we encourage you to read below, our online wizard is available to walk you through each step in preparing an adjudication response.

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 response. If generating your adjudication response via your Lockbox Wizard, a PDF document will be generated which contains a link to the files in your Lockbox for this particular adjudication response. If service of the adjudication response 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 response 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 Claimant, 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 response and/or clarification of any uncertainties in completing our online adjudication response wizard. In all cases, the Respondent MUST make its own enquiries to satisfy itself of the most suitable method of service.

If still uncertain, our staff are available on 1300 760 297.

The adjudication response

The adjudication response, with accompanying submissions, should:

1. Be in writing addressed to the adjudicator whose address is that of Adjudicate Today and be received by the adjudicator within time.
2. Identify the adjudication application that the response relates to (include the Adjudicate Today reference number).
3. Submit any reasons as to why the adjudicator should not make a determination. Generally such submissions would go to the adjudicator's jurisdiction to make a determination.
4. Not include reasons for withholding payment unless those reasons have been included in the payment schedule.
5. Elaborate on reasons given in the payment schedule for refusing to pay or withholding payment of any amount. Submissions should be relevant to the response. If documentation other than that provided in the adjudication application is referenced, those documents should be attached to the response. These documents may include expert reports and dated photographs evidencing defective work and statements from witnesses.
6. Clearly set out calculations showing how the claimed amount is wrong.
7. Respond to issues raised in the adjudication application. Such issues could include that the claimant is not entitled to claim amounts additional to those in the payment claim or to change the payment claim.
8. Include any legal advice and/or opinion which supports the respondent's position.
9. State a view, with reasons, as to how the adjudicator should assign the costs of the adjudication.
10. Ensure that submissions do not contain emotional words or language derogatory or defamatory of the claimant.

Submissions are essentially arguments in support of the respondent's case. They may include legal arguments, arguments on the interpretation of the contract or other documents. Documents that are submitted usually don't speak for themselves. The submission should explain why a document has been submitted. Don't assume that the reason for submitting a document will be obvious. The adjudicator cannot simply accept that something said by the respondent in a letter or minutes of a meeting or other document is true. In the submission the respondent should state that it is true. If the respondent fails to do so, the adjudicator might draw the inference that the respondent is not prepared to assert the statement is true.

The overall submission should be concise, clearly written and set out the respondent's arguments and reasons. Remember the submission should always link back to any agreement/documentation, dated photographs, technical/legal reports which support the respondent's reasons set out in the payment schedule.

Statutory declarations are not necessary. Because an adjudicator can't test the contents of a statutory declaration, they are given no greater weight than unsworn witness statements.

Download template of an Adjudication Response *Note: This form is interactive. This means it can be EITHER filled out on screen and printed OR downloaded and printed for manual completion.

Both Adjudicate Today and the claimant should be served with identical adjudication responses, preferably on the same day. The Adjudicate Today wizard allows same day service by facilitating electronic service. Use of the wizard also ensures the adjudication response copy which is provided to the claimant is identical to that provided to Adjudicate Today.

How is an adjudication response served on Adjudicate Today?

Both Adjudicate Today and the claimant should be served with an identical adjudication response.

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 transmitted from your personal lockbox to the Adjudicate Today lockbox. We recommend against using email as email may not be received. All files submitted to the Adjudicate Today lockbox 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. Please phone our office: 1300 760 297 or email: nsw@adjudicate.com.au.
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. Electronic File Delivery via email: nsw@adjudicate.com.au. Maximum file should be limited to 5 MB.
7. 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 respondent 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.
8. 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 office and addresses of other State offices are found on our Contact Us page.

How is an adjudication response served on the claimant?

Unless otherwise agreed by the parties, the adjudication response must be provided to the claimant during normal business hours at the claimant's ordinary place of business or in accordance with the NSW Electronic Transactions Act 2000 Section 8. If there is an agreement between the parties for service by Lockbox or electronic link, then your Lockbox may be used to electronically serve documents 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 response to the claimant 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:

• Respondents are strongly advised to keep a record of the time, date and manner of service of the adjudication response on the claimant. A claimant may deny receipt of the adjudication response in which case the respondent 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 claimants 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.

Please move to the next step on the NSW flowchart being "Adjudication Determination. The Adjudicator has 10 business days to determine the Adjudication Application from the date of receipt of the Adjudication Response or the date the Response would have been due or, if the Respondent has no right to serve a Response, 10 business days after the Claimant and Respondent received notice of the Adjudicator's acceptance of the Adjudication Application. Time may be extended by agreement of both parties".