Vic Claimant Common Pitfalls

Adjudicate Today (AT) has managed thousands of adjudication applications since the introduction of the Act in 2002 (we estimate over 60% of all adjudication applications made nationally) and we have learned many lessons. Below we outline our observations as to the most common mistakes claimants make in adjudication.

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Time frames

• The Act provides strict time frames for the service of documents. Neither AT nor the adjudicator can extend time frames and if any document is received/served just one or more business day outside the prescribed time, it may affect the validity of the adjudication application.
• Calculate time frames carefully noting that the business day on which a particular document is received is counted as business day 0 (weekends, public holidays and days between 22 December and 10 January are excluded).
• In the adjudication application, provide evidence that the time frames have been complied with by including written confirmation and evidence of both the specific date and method of service/receipt of documents (e.g. courier, post, email etc.).
• Where items are sent by ordinary post, allow sufficient time for the item to be received. Generally, items sent by ordinary post are taken to have been served 7 business days after the day on which the document is posted (or an earlier date of delivery). As respondents may deny receipt of post, courier (signature required) or Express Post may be considered a preferred form of service.
• The due date for payment and/or release must fall after the date of service of the payment claim and/or performance security claim. A valid s 18(2) notice and/or s 18A(2) notice must be served after the due date for payment/release has passed.

Demonstrate an entitlement to the claim

• Include in the adjudication application a written submission and supporting documents which demonstrate:
• the particular agreement was made (whether written or oral) between the claimant and respondent;
• the payment claim and/or performance security claim has been calculated in accordance with the contract; and
• the claimant has performed the work or provided the related goods and services as claimed.
• If no payment schedule and/or performance security schedule is provided by the respondent, the adjudicator must still be satisfied that there was a contract under which work was performed to the claimed value. Therefore the written submission and supporting documents should still be provided.
• Too often claimants assume an adjudicator will seek additional submissions if the application does not substantially demonstrate an entitlement to the amount claimed or is unclear. Usually there is insufficient time for this and, in any case, it is not the adjudicator's responsibility to assist the claimant strengthen its case.
• Ensure the payment claim and/or performance security claim is addressed to the legal entity that the claimant had contracted with. For example, if the claimant contracted with Fred Smith t/as ABC Building but the payment claim was issued in the name of ABC Building Pty Ltd, the claimant will be unable to enforce the adjudication determination.

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