TAS: Adjudication Determination
In reaching a determination, the adjudicator must consider the following matters only:
- The Building and Construction Industry Security of Payment Act 2009 (Tasmania);
- The contract (oral or written);
- The payment claim;
- The payment schedule;
- The adjudication application;
- The adjudication response (if any);
- The results of inspections (if any); and
- Any other submissions (including relevant documents and submissions made at a conference, if any, called by the adjudicator) which the adjudicator allows the parties to make.
- 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;
- If parties are to pay the adjudication fee other than in equal shares, the proportion payable by each; and
- Where one party claims in the payment claim or payment schedule or adjudication application or adjudication response or in any subsequent submission requested by the adjudicator and satisfies the adjudicator that the conduct of the other party was frivolous or vexatious or based on the making of unfounded submissions (a vexatious application), some or all of the costs that have been incurred.
If, in a previous adjudication, the adjudicator or another adjudicator has determined the value of work, goods or services, the adjudicator must give that work, goods or services the same value, 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 (unless it is determined to be a vexatious application) however setoffs 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. If GST hasn't been claimed it can't be awarded. A payment claim of (e.g.) $10,000 + GST lacks sufficient precision. How is an adjudicator to know that the full amount of $10,000 is subject to GST? The claim should be for $11,000, including GST.
If during the course of adjudication, the adjudicator becomes aware of a conflict of interest, the adjudicator must cease to deal with the matter and the nominating authority must refer the adjudication application to another adjudicator. The retiring adjudicator is still entitled to fees for services provided up to the time he or she became aware or should have become aware that he or she was disqualified.
A party who considers an adjudicator has a conflict of interest may ask the adjudicator to stand down. If the adjudicator does not stand down within 7 days, the party may apply to the Magistrates Court for a review of the decision of the adjudicator not to stand down. Despite the application to the Court, the adjudicator has to complete the adjudication pending the Court's decision but the respondent does not have to pay the adjudicated amount unless and until the Court completes the review.
The adjudicator's determination is in writing and, unless both parties request otherwise, will include reasons. It 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 flowchart being "Respondent must pay any adjudicated amount either within 5 business days of service of the Determination or by Due Date of Payment, whichever is the later".