SA: Respondent Prepares Adjudication Response
This section provides essential 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. If this advice is not followed, the chances of the respondent being successful in adjudication may be reduced.
An adjudication response must be served on the adjudicator on or before the latter 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 not the adjudicator may extend these time frames which are specified by the Act. An adjudicator can't take into account an adjudication response which is received late.
The respondent's adjudication response:
- Must be in writing;
- Must be addressed to the adjudicator whose address is that of Adjudicate Today and be received by the adjudicator within time;
- Must at the same time be served on the claimant:
- Must identify the adjudication application that the response relates to (include the Adjudicate Today reference number);
- Must not include any reasons for withholding payment unless those reasons have been included in the payment schedule;
- Should include full details of reasons given in the payment schedule for refusing to pay or withholding payment of any amount. Documents necessary to evidence or support those reasons should be attached. These may include expert reports and photographs evidencing defective work and statutory declarations from witnesses.
- May contain submissions relevant to the response. If documentation other than that provided in the adjudication application is referenced those documents should be attached to the response.
- May respond to issues raised in the adjudication application. Such issues could include the fact that the claimant is not entitled to claim amounts additional to those in the payment claim or to change the payment claim.
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 to the adjudicator. The adjudicator cannot be expected to 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 can state that it is true but if the respondent fails to do so the adjudicator might draw the inference that the respondent is not prepared to argue that 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, photos, technical/legal reports which support the respondent's reasons set out in the payment claim.
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.
Please move to the next step on the flowchart being "Respondent serves Adjudication Response on Adjudicate Today and Claimant".