Vic: Adjudication Response Not Permitted

Failure to serve the payment schedule within time has the serious consequence of denying the respondent the opportunity to make any submissions (the adjudication response) to the adjudicator. Often, but not always, an adjudicator confronted with no submissions from the respondent may determine that the claimant is entitled to the full amount claimed.

Is there anything at all that a respondent can do?

An adjudicator may only determine an adjudication application which is within the jurisdiction of the Act. Failure to provide a payment schedule does not automatically mean the claim will be awarded. An obligation still rests with the adjudicator to consider the requirements of the Act, and to be satisfied that the work has been done and is properly valued. Therefore the claimant must satisfy the adjudicator of certain key components in any claim, including:

• The payment claim and s18(2) notice was served on the respondent's normal place of business or otherwise as specified in any contract and within the time requirements of the Act;
• There was a construction contract in existence between the parties for work in the State of Victoria;
• Work was performed under the contract which remains unpaid;
• The rate at which the work is to be remunerated and how the total amount claimed is calculated.

A respondent may seek to place a submission to the adjudicator on issues going to jurisdiction including but not necessarily limited to:

• The payment claim and/or s18(2) notice was not served on the respondent's normal place of business or otherwise as specified in any contract and/or was not served within the time requirements of the Act;
• There was no construction contract in existence between the parties for work in the State of Victoria;
• Work was not performed under the contract which remains unpaid.

How an adjudicator responds to such a submission from the respondent is a matter for him or her to determine; however Adjudicate Today adjudicators will generally call for submissions on the issue of jurisdiction. If a party provides a submission beyond the issue(s) requested by the adjudicator, such further arguments are generally not considered.

Please move to the next step on the Victoria flowchart being "Adjudication Determination. The Adjudicator has 10 business days from the date of the Adjudicator's acceptance of the Adjudication Application to determine it. If the Adjudication Response includes new reasons for withholding payment, not included in the Payment Schedule, the Adjudicator must serve a notice on the Claimant setting out the new reasons and providing 2 business days for the Claimant to lodge a response. Time may be extended for a maximum of 5 business days by the Claimant.".