VIC: Adjudication Determination
In reaching a determination, the adjudicator must consider the following matters only:
- The Building and Construction Industry Security of Payment Act 2002 (Victoria);
- The contract (oral or written);
- The payment claim;
- The payment schedule (if any);
- The adjudication application;
- The adjudication response (if any);
- If additional reasons provided in the adjudication response, the claimant's response;
- The results of inspections (if any); and
- Any other submissions (including relevant documents and submissions made at a conference, if any, called by the adjudicator) which the adjudicator allows the parties to make.
The adjudicator will determine the following:
- The amount of the progress payment, if any, which the respondent must pay the claimant;
- The date on which the amount became or becomes payable;
- The rate of interest payable on such amount; and
- If parties are to pay the adjudication fee other than in equal shares, the proportion payable by each.
If, in a previous adjudication, the adjudicator or another adjudicator has determined the value of work, goods or services, the adjudicator must give that work, goods or services the same value, unless the adjudicator is satisfied that the value has changed since the previous adjudication.
Other than as a consequence of a review adjudication, an adjudicator can't determine that the claimant will pay the respondent money. Respondents claims for a setoff to the value of the claimant's payment claim may be decided is such setoffs aren't excluded amounts. Similarly an adjudicator will not award an amount greater than the amount claimed in the payment claim. If GST hasn't been claimed it can't be awarded. A payment claim of (e.g.) $10,000 + GST lacks sufficient precision. How is an adjudicator to know that the full amount of $10,000 is subject to GST? The claim should be for $11,000, including GST.
The adjudicator's determination is in writing and, unless both parties request otherwise, will include reasons. It is forwarded to Adjudicate Today who bills the claimant and serves the determination on both the claimant and the respondent. The determination is not released until the adjudication fees (which include a service fee paid by the adjudicator to Adjudicate Today) have been fully paid.
In very rare cases, either a claimant or respondent may make application for a Review Adjudication. In the 11 years of the Act's operation, Adjudicate Today is only aware of 2 such applications proceeding.
Please move to the next step on the Victorian flowchart being "Respondent must pay any adjudicated amount either within 5 business days of service of the determination or by Due Date of Payment, whichever is the later".