Vic: Adjudicator's Determination
The adjudicator must determine an adjudication application:
- Within 10 business days from the date on which the adjudicator accepts the adjudication application; or
- Such further time as agreed by the claimant to a maximum of 5 additional business days.
If the adjudicator considers the respondent has included additional reasons in the adjudication response for non payment beyond those provided in the payment schedule, the adjudicator must serve a notice on the claimant setting out those reasons and stating that the claimant has 2 business days to lodge a response to the adjudicator. Neither the adjudicator nor the parties can increase the two business days. e.g. a claimant may request additional time to prepare its response and propose the adjudicator take additional time to complete the determination (to a maximum of 5 business days). However, the Act specifies 2 business days and there is no capacity to amend this period.
An adjudicator may seek further submissions from a party. This may be at the request of one of the parties. In this case the adjudicator will also give the other party the opportunity to submit. Strict deadlines will be set as a call for further submissions does not extend the statutory 10 days to complete the determination (unless agreed by the claimant and to a maximum of 5 business days).
An adjudicator cannot make a determination earlier than the date of expiration of any period allowed for the respondent to submit an adjudication response.
Some respondents think they can ambush the claimant by saving up their reasons for withholding payment until they lodge their adjudication response.
This may backfire:
- A payment schedule must contain some reasons to be valid.
- The claimant will have the last say and will often seek to comment further on all reasons contained in the adjudication response - not only the new reasons.
- This approach effectively denies an adjudicator 2 of the 10 business days to complete the determination. The sooner an adjudicator is made aware of a reason, the more time the adjudicator has to be satisfied of the soundness (or otherwise) of the reason.
In unusual circumstances, the adjudicator may decide in his or her discretion that either a conference or an inspection or both is required before finalising a determination.
The need for a conference may arise for a number of reasons: for example, to clarify submissions, supporting material or calculations of either party, to elicit comments by either party on submissions, to decide if further submissions are needed or to establish whether there is a need to carry out an inspection.
If a conference is required, Adjudicate Today will notify both parties of the proposed conference date, time and location and the purpose of the conference to ensure that all parties are properly prepared. The adjudicator's ability to make a determination is not affected by failure of one or more parties to attend the conference or make submissions or comments.
An adjudicator is also entitled to carry out an inspection of any matter to which the payment claim relates. An inspection will normally only be held where it is considered essential for a finding on a party's written submission. An inspection can include a site visit of the construction work or inspection of related services or goods provided, documents, reports, plans or papers, relating to the payment claim.
In reaching a determination, the adjudicator will consider:
- The Building and Construction Industry Security of Payment Act 2002 (VIC);
- The contract (oral or written);
- The payment claim;
- The payment schedule (if any);
- The adjudication application;
- The adjudication response (if any);
- The claimant's reply to any new reasons provided in the adjudication response;
- The results of inspections (if any); and
- Any other further submissions 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
- The proportion of adjudication fees payable by each party.
If the work or goods or services has already been valued in a previous adjudication, the same value must be attributed, unless the adjudicator is satisfied that the value has changed since the previous adjudication.
An adjudicator can't determine that the claimant will pay the respondent money. However set-offs or deductions to the value of the claimant's payment claim may be decided. Similarly an adjudicator will not award an amount greater than the amount claimed in the payment claim.
The adjudicator's written determination 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.
Please move to the next step on the Victoria flowchart being "In limited circumstances, either party may apply for a Review of the Adjudication Determination.