TAS: Claimant NOT Paid, Prepares Adjudication Application
This section provides essential 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 21(4) second opportunity notice.
What happens now?
The adjudication application must be prepared and served by the claimant on Adjudicate Today and the respondent within 10 business days after the expiry of 5 business days from service of the second opportunity (s21.4) notice.
Due to a drafting "quirk" in the Act, a claimant who receives a payment schedule after serving a second opportunity s21(4) notice must wait until the notice expires (5 business days after receipt) before the 10 business days for service of the adjudication application commences. Service of an adjudication application on Adjudicate Today before the 5 business days after receipt has elapsed may render the application invalid or at the least require that it be resubmitted.
An adjudication application must:
- Be in writing addressed to Adjudicate Today (or other ANA), requesting the nomination of an adjudicator;
- Be lodged with Adjudicate Today within 10 business days from the date of receipt of the payment schedule;
- At the same time be served upon the respondent;
- Attach a copy of the payment claim;
- Contain a written submission evidencing that the claimed amount is due and unpaid and the value of the work, materials or services for which payment is claimed.
- Have attached to the written submission all the information (including certificates, test results, delivery dockets, invoices, photographs, statutory declarations, expert reports, written statements and arguments) which the claimant wants to put to the adjudicator in support of the written submission, and
- Include 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 under which the payment claim is made.
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.
Download the Adjudication Application form *Note: This form is interactive. This means it can be EITHER filled out on screen and printed OR downloaded and printed for manual completion.
In relation to preparing the adjudication application:
Show that the work was in fact done and/or related goods and services were supplied as required by the provisions of the contract or agreement between the parties in accordance with the identified items and conditions of the contract (if possible, refer to the specific paragraph in contract).
Ensure a copy of the contract is attached. If the contract or agreement is wholly or partly oral, set out the precise terms of the oral agreement, when it was made and the named person who entered the contract on behalf of the respondent. Attach a copy of the written part of the contract or agreement.
If the contract is not a formal contract but the result of letters or other correspondence, attach copies of the relevant letters and/or correspondence which constitute the contract or agreement.
- Show the nature and extent of the work done (including any rectification work of alleged defects) and/or related goods and services provided by the claimant under the contract and quantify their value.
- Clearly set out calculations showing how the amount claimed is made up by items/value with a total, including GST.
- If possible, obtain witness statements or other technical report, test results, photos, invoices (from suppliers, quality assurance statements, statutory declarations of payment of workers subcontractor etc) or other documentation which supports the claim, attach these as numbered attachments. This is particularly important for larger claims. These attachments should show that the work was properly done and completed in line with the contract and/or that related goods and services were provided as per the progress claim. Statutory declarations are not necessary. Because an adjudicator can not test the contents of a statutory declaration, they are given no greater weight than unsworn witness statements.
- Set out in separate numbered paragraphs the arguments with logical reasons as to why the claimant is entitled to receive the amount claimed as a progress claim. Refer back to any relevant material supporting each argument and quote the specific attachments (e.g. see Report dated... Attachment A etc).
- Any legal advice and/or opinion which supports the claim may be attached as an annexure and should be referred to in the submission (a legal opinion is not necessary to make a claim).
- Ensure that submissions do not contain emotional words or language derogatory or defamatory of the respondent.
The overall submission should be concise, clearly written and set out the claimant's arguments and reasons. Remember the submission should always link back to any agreement/documentation, photos, technical/legal reports which support the claimant's entitlement as set out in the payment claim.
A copy of the adjudication application and all attachments or other things accompanying it must be served on the respondent at the same time as it is served upon Adjudicate Today.
Please move to the next step on the flowchart being "Claimant serves Adjudication Application on Adjudicate Today and Respondent". Ensure you remain in the area of the flowchart with pink background.