Vic Claimant NOT Paid, Prepares and Serves 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 18(2) second opportunity notice.

An adjudication application:

1. must be in writing; and
2. must be lodged with an Authorised Nominating Authority (Adjudicate Today) chosen by the claimant within strict timeframes imposed by the Act; and
3. must identify the Payment Claim/Performance Security Claim and/or the Payment Schedule/Performance Security Schedule to which it relates; and
4. may contain any submissions relevant to the application that the claimant chooses to include.

To prepare your adjudication application using Lockbox, access our Lockbox webpage. Alternatively download a PDF template of an adjudication application.

When does a Claimant lodge and serve the Adjudication Application?

Failure to comply with the strict time frames under the Act will cause an application to fail.

If a schedule is not received within 5 business days after service of a section 18(2) and/or Section 18A(2) Notice, the Adjudication Application is due within 5 business days following the expiry of the 5 business day notice.

Example: The Claimant served a claim, but the Respondent did not reply with a schedule. The Claimant then waits for the due date to lapse and then serves a section 18(2) and/or section 18A(2) notice, which provides the Respondent a further 5 business days to serve a schedule. Once the 5 business day notice expires, the Claimant then has 5 business days to lodge an Adjudication Application.

Calculation: Date of service of notice + 5 business days for notice to expire + 5 business days = application deadline.

How is an Adjudication Application served on the Respondent?

The Claimant MUST serve a copy of the Adjudication Application on the Respondent within 3 business days after lodging the application with Adjudicate Today.

Details regarding serving documents may be reviewed at Service of Documents.

Claimants are strongly advised to keep a record of the time, date and manner of service on the Respondent. The time for the Respondent to provide the Adjudication Response (if eligible) runs from the date of receipt of the Adjudication Application. A Respondent may deny receipt of the Adjudication Application in which case the Claimant must be able to evidence the date of service.

What do I include in an Adjudication Application?

It is usually not sufficient for the claimant to merely refer to the claim and the respondent's schedule and state that the claimant is entitled to payment. The submission should:

1. Set out in separate numbered paragraphs the arguments with logical reasons as to why the claimant is entitled to receive the amount claimed. Refer to any relevant material supporting each argument and quote the specific attachments (Example: refer to page, tab, or attachment number).
2. Attach a copy of the contract. 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 any emails, correspondence or paid invoices supporting the oral agreement.
3. Provide evidence 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).
4. 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.
5. Clearly set out calculations showing how the amount claimed is made up by items/value with a total, including GST.
6. If possible, obtain witness statements or other technical reports, 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 cannot test the contents of a statutory declaration, they are given no greater weight than unsworn witness statements.
7. Any legal advice and/or opinion which supports the claim may be attached and should be referred to in the submission (a legal opinion is not necessary to make a claim).
8. 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.

Upon receipt of the application, Adjudicate Today nominates an appropriate adjudicator from our panel of registered adjudicators to determine the matter. Adjudicators cannot be pre-appointed under a construction contract.

Within 4 business days of receipt of an application, Adjudicate Today will provide a formal Notification of Acceptance of the adjudication application on behalf of the appointed adjudicator.

What happens after an Adjudication Application is lodged & served?

On accepting an adjudication application, the adjudicator is taken to have been appointed to determine the application. Details regarding the adjudication process may be reviewed in detail on the Adjudication Determination page.

Tips:

• Review a list of the most common mistakes made by claimants during the Adjudication process.
• Under certain circumstances, Claimants are entitled to exercise a statutory right to suspend work. Review details regarding the Claimant’s Right to Suspend Work.

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