WA: Applicant Prepares and Serves Adjudication Application

This section provides important guidance for the applicant in completing an adjudication application where the respondent neither paid the full claimed amount nor provided a notice of dispute by the due date of payment.

The applicant has 90 business days from the due date of payment to prepare and serve the adjudication application.

A Prescribed Appointer (PA) may require the payment of an application or appointment fee or like fee before the commencement of or during the course of an adjudication. Some adjudicators require a large deposit as 'security against their costs'. The Adjudicate Today fee is $Nil. Only in the most exceptional circumstance (never in the past 21 years) will an Adjudicate Today adjudicator ask for a security deposit. The adjudicator fee is only charged to the applicant once the determination is complete and prior to its release to the parties.

An adjudication application must relate to a payment dispute. Note: Payment disputes can't be bundled into a single adjudication application. Each invoice (payment claim) that remains unpaid will relate to work over different days and therefore have different due dates for payment. A separate adjudication application is required for each payment dispute albeit Adjudicate Today may appoint, or the parties may agree to the appointment of, the same adjudicator (subject to the consent of the adjudicator) to simultaneously adjudicate all the disputes.

A payment dispute is where:

• a payment claim is rejected or disputed (wholly or partly);
• payment in full has not been received by the time the amount claimed is due under the contract;
• any money retained by a party has not been paid by the time it is due under the contract; or
• any security held by a party has not been returned by the time it is due under the contract.

We suggest you now download the Adjudicate Today adjudication application form and follow it with the assistance of the information provided below.

When making your adjudication application you have 2 alternatives:

1. Use our interactive lockbox which provides assistance for each necessary step, or;
2. Complete the application manually using our adjudication application form (this can also be completed on your computer).

Adjudicate Today maintains a list of qualified and experienced person registered by the Building Commissioner to conduct adjudications under the Act.

Click here for our list of registered adjudicators.

If you follow each step of our application form the following information, which is required by the Act, will be covered. However, please be careful to also include any additional information required by the contract.

• The name address, ABN (and, if known, ACN), telephone, fax number and email of both the applicant and respondent;
• If applicable, the name address, ABN (and, if known, ACN), telephone, fax number and email of any preferred and /or nominated adjudicator;
• The Adjudicate Today details (as the PA) are already completed;
• Identify the payment claim to which the application relates;
• Identify the amount of payment that it is proposed be paid by the respondent (it may be "nil");
• Identify the amount the applicant is seeking to be paid and the basis on which it is calculated;
• Attach the construction contract involved (or at least relevant details) and a description of the work performed to demonstrate that the work performed was construction work;
• Be signed by the party making the application.

The application should also contain all information, documentation and submissions which will be relied upon in the adjudication.

To determine an adjudication application, the adjudicator must commence by deciding they have jurisdiction to proceed. They next consider specific information and any other information you choose to provide in order to determine the payment dispute.

An adjudicator commences by addressing these questions. Whether:

• the contract between the applicant and respondent is a construction contract for the purposes of section 3 of the Act. A copy of the Act may be downloaded by clicking here;
• a valid payment claim has been made under a construction contract;
• a payment dispute arose under a construction contract;
• an application has been prepared and served in accordance with section 26(1), (2)(b) and (c) of the Act;
• there is no prior decision on the identical payment dispute by an adjudicator, court, arbitrator or other body; and
• the payment dispute is not too complex to fairly determine within the time available or any extension of time agreed by the parties.

The adjudication submission should also:

• State that the work was in fact done and/or related goods and services were supplied as required by the provisions of the contract or verbal agreement between the parties in accordance with the identified items and conditions of the contract (if possible, refer to the specific paragraph in contract).
• Attach a copy of the contract. If the contract or agreement is wholly or partly oral, set out the precise terms of the oral agreement, when it was made and the named person who entered the contract on behalf of the respondent. Attach a copy of any emails, correspondence or paid invoices supporting the oral agreement.
• Show the nature and extent of the work done (including any rectification work of alleged defects) and/or related goods and services provided by the applicant under the contract and quantify their value.
• Clearly set out calculations showing how the amount claimed is made up by items/value with a total, including GST.
• If possible, obtain witness statements or other technical report, test results, photos, invoices (from suppliers, quality assurance statements, statutory declarations of payment of workers / subcontractors etc.) or other documentation which supports the claim and annex these as numbered attachments. This is particularly important for larger claims. These attachments should show that the work was properly done and completed in line with the contract and/or that related goods and services were provided as per the progress claim. Statutory declarations are not necessary. Because an adjudicator cannot test the contents of a statutory declaration, they are given no greater weight than unsworn witness statements.
• Set out in separate numbered paragraphs, the arguments with logical reasons as to why the applicant is entitled to receive the amount claimed as a progress claim. Refer back to any relevant material supporting each argument and quote the specific attachments (e.g. see Report dated... Attachment A etc.).
• Any legal advice and/or opinion which supports the claim may be attached as an annexure and should be referred to in the submission (a legal opinion is not necessary to make a claim).
• Ensure that submissions do not contain emotional words or language derogatory or defamatory of the respondent.

The overall submission should be concise, clearly written and set out the applicant's arguments and reasons. Remember the submission should always link back to any agreement/documentation, photos, technical/legal reports which support the applicant's entitlement as set out in the payment claim.

Our application form walks you through these questions and issues. The form should be completed with as much detail as possible.

The adjudication application may be made to Adjudicate Today requesting:

• the appointment of an adjudicator; or
• the appointment of the adjudicator agreed by both parties; or
• that Adjudicate Today facilitate with the respondent an agreement to the appointment of a preferred adjudicator.

Where the contract provides for the appointment of a particular adjudicator or prescribed appointer (PA), the application should be made as is provided by the contract.

How is an adjudication application served?

Both Adjudicate Today and the respondent should be served with identical adjudication applications, if possible, on the same day.

Adjudicate Today accepts electronic, physical and/or fax service. Service can be effected by any of the following methods:

• Electronic File Delivery via Lockbox. You can send very large electronic files directly to Adjudicate Today. All files are encrypted and sent over a secure connection. They are held in your personal 'Lockbox'. Only you and Adjudicate Today authorised staff can access your Lockbox. We strongly recommend it over email as email may not be received. All uploaded files are acknowledged by an automated email within a couple of minutes. If no email is received, there is an error in the uploading and you need to upload again. Please read our disclaimer for details on rights and obligations for the delivery of electronic files.
  Click here for details on establishing a free Lockbox account
• Physical Delivery including courier, in person, post or fax. We accept delivery in any of our Australian offices (normal business hours). Addresses are found on our Contact Us page.
• Email. wa@adjudicate.com.au or help@adjudicate.com.au
• Fax. 1300 760 220

Physical service on the respondent should occur during normal business hours, at the respondent's head office or as otherwise required by the contract. In the absence of a contrary contract provision, the safest way of ensuring service is to serve by courier with instruction to obtain a signed receipt. In our experience, below is the safest ranking to ensure service on the respondent.

1. Courier - signature required;
2. Mail - Express Post: keep express post tracking number for delivery verification;
3. Platinum Post - Signature required;
4. Ordinary Post - Make a statement verifying the address, date of postage and other relevant details;
5. Email (only to an email address which is specified by the person for the services of documents of that kind). In email options, we advise tick both "request a delivery receipt" and "request a read receipt";
6. Fax - Print and keep full page fax journal report as evidence of transmittal. Do not use fax for colour photographs and plans as they are generally rendered unreadable. Lengthy faxes have been known to lose pages in transmission;
7. In person - Ensure a receipt is obtained; or
8. A different method only where such method is provided under the relevant construction contract.

Upon receipt of the adjudication application, Adjudicate Today has five business days to appoint an adjudicator and notify the parties from our panel of registered adjudicators to determine the matter. If a party asks Adjudicate Today to facilitate agreement with the other party for the appointment of a preferred adjudicator and agreement is reached, Adjudicate Today will seek the adjudicator's consent to the appointment and make the appointment. If a party nominates an adjudicator and the other party does not agree to that adjudicator’s appointment, that adjudicator shall NOT be appointed.

Please move to the next step on the WA flowchart which is "Respondent has 10 business days from receipt of the Adjudication Application to prepare & serve the Adjudication Response on the applicant and the adjudicator or Adjudicate Today"

You are now moving to the area of the flowchart with the light yellow background.