Vic Respondent - 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. Here is our list of common issues where respondents may stumble.

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Time frames

• If the respondent does not provide a payment schedule and/or performance security schedule to the claimant within 10 business days of receipt (or earlier period if specified in the contract) or the subsequent 5 business days after receipt of a s 18(2) notice and/or s 18A(2) notice, then the respondent has no right to lodge an adjudication response to the adjudication application. Neither AT nor the adjudicator can extend these timeframes.
• Calculate time frames carefully, noting that the date of receipt of a particular document is counted as business day 0 (weekends, public holidays and days between 22 December and 10 January are excluded).
• If an adjudication response is received by the adjudicator just one business day outside of the prescribed time (see s 22(1) Act), the adjudicator will not be able to consider it.
• 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 claimants may deny receipt of post, courier (signature required) or Express Post may be considered a preferred form of service.

Always serve a Payment Schedule and/or Performance Security Schedule

• Unless the respondent proposes to pay/release the claim in full, a payment schedule and/or performance security schedule should always be served, even if the respondent believes that the claim is invalid. Otherwise, the respondent will forgo its right to lodge an adjudication response.
• If a respondent chooses to ignore the adjudication process, the adjudicator will still proceed and make a determination.

Provide all reasons in a Payment Schedule and/or Performance Security Schedule

• List all reasons for non in the payment schedule and/or reasons for non-release in the performance security schedule provided to the claimant. Should the dispute go to adjudication, the respondent cannot include in the adjudication response any reasons for withholding payment, unless those reasons have already been included in the payment schedule and/or performance security schedule.
• Provide sufficient information for valuation of construction work or related goods and services by an adjudicator. If the respondent believes that an amount should be withheld from a progress payment because of a defect, then the respondent should provide calculations / other evidence which adequately demonstrates the cost of rectification of the defective work or goods. Simply stating that "work is defective" or similar is insufficient. The case must be supported with calculations / evidence such that the adjudicator can understand the argument and how the scheduled amount was calculated.

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