Vic Respondent to Comply with Determination

When is the Adjudicated Amount to be paid by the Respondent?

The respondent is to make payment or release of the adjudicated amount, plus any interest and adjudicator’s fee within 5 business days after service of the adjudicator's determination on the respondent, or such later date as is determined.

Adjudicate Today will always forward a copy of the determination to both parties, however where the Respondent is to make a payment to the claimant, the claimant may forward the respondent:

• a copy of the adjudication determination (this helps avoid a dispute over date of receipt of the determination); and
• an invoice totalling the adjudicated amount, including all fees and charges of the adjudicator and any interest awarded by the adjudicator (calculated to the date of the invoice).

Who does the Respondent pay?

The respondent should make payment directly to the claimant.

What if the respondent does not pay and/or release the full amount?

It is not uncommon for a respondent to make a part during the course of the adjudication process. However, it is the adjudicator's obligation to determine the matter on the basis of the adjudication application and not some lesser (or greater) amount. In this case the claimant should reduce the amount invoiced to the respondent by the amount of the part.

Once the relevant date has elapsed, if the respondent has not paid or released the full amount, the claimant may submit a Request for an Adjudication Certificate to Adjudicate Today for the issue of the adjudication certificate.

If the adjudicator determines the claimant has no entitlement to an adjudicated amount, the determination may still require the respondent pay some component of the costs of the adjudication.

As the debt created by the adjudication determination is a statutory debt, it is generally easy to enforce in the courts. Concurrent proceedings whether they be mediation, arbitration, expert determination or litigation can't prevent the adjudication proceeding or the effect of the adjudication determination.

A court is unlikely to intervene to prevent the enforcement of an adjudication determination. Generally such applications must be made to the Supreme Court and are expensive to run and difficult to win.

However some grounds on which a court may intervene include:

• there was no construction contract (within the meaning of the Act) between the parties;
• the respondent was not served with a payment claim under the Act;
• the claimant is guilty of fraud;
• within the requirements of the Act, the adjudicator failed to treat any party fairly (natural justice).

Generally adjudicator error, unless it goes to jurisdiction, is insufficient to attract court intervention. In most cases it is quicker and more cost effective to comply with the adjudication determination and sue separately for repayment of any alleged overpayment. In all such matters legal advice should be taken from a lawyer who is familiar with the building and construction industry and the Act.

A respondent who is dissatisfied with the adjudicator's determination and has paid the amount due to the claimant has the option of suing separately (or exercising any other dispute resolution rights as described in the contract) for repayment of any alleged overpayment. However it is the respondent (not the claimant) who is now "out of pocket" and must prove a cause of action with all the prospects of the delay, cost and stress involved in recovering the alleged overpayment.

Similarly, if the claimant considers that the amount determined by the adjudicator is too little, the claimant can sue (or exercise any other dispute resolution rights as described in the contract) for the balance, but that claim cannot be a claim under the Act.

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