WA: Adjudicator's Determination
The adjudicator must determine an adjudication application:
- Within 10 business days from when the adjudicator received the adjudication response, or the date the response would have been due; or
- Such further time as agreed by the applicant and respondent.
An adjudicator cannot make a determination earlier than the date of expiration of the period allowed for the respondent to submit an adjudication response.
An adjudicator may seek further submissions from a party. In this case very strict deadlines will be set as a call for further submissions does not extend, unless agreed by the parties, the statutory time requirements. An adjudicator will also give the other party opportunity to comment on the submission. Sometimes a party may provide an adjudicator a further unsolicited submission. Whether the adjudicator will consider it is at the total discretion of the adjudicator. If the adjudicator agrees to consider and where the submission raises a new matter, the adjudicator must provide the other party the opportunity to respond. Adjudicators will regularly make any consent conditional on both parties agreeing to extend the time to make the determination.
The adjudicator may decide, unless all parties object, to conduct a conference and/or an inspection; or to test anything; and / or engage an expert to investigate and report on any matter relevant to the payment dispute. However, this is unlikely given the strict 10 business days time frame unless parties agree to extend the time for the making of the determination.
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 not bound by the rules of evidence, may be informed as he or she thinks fit and determines the procedure for the adjudication, including whether legal representatives may attend any conference.
In reaching a determination, the adjudicator will consider:
- the Construction Contracts Act 2004 (WA);
- the contract (oral or written);
- the payment claim;
- the dispute notice (if any);
- the application for adjudication and its attachments;
- the response to the application for adjudication (if any validly made);
- the results of conferences/inspections, tests, expert reports (if any); and
- any other further submissions which the adjudicator allows the parties to make.
The adjudicator commences the determination by deciding that he has jurisdiction to proceed.
- the contract between the applicant and respondent is a construction contract for the purposes of section 3 of the Act;
- 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 should be 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.
Once satisfied over jurisdiction, the adjudicator will make the determination. This will include:
- the amounts (including the return of any security) to be paid by the respondent to the applicant;
- any interest to be paid on these amounts;
- the date by which the payment must be made; and
- the reasons for the decision reached.
Unless an adjudicator is simultaneously adjudicating applications from both parties against each other, an adjudicator can't determine that the applicant will pay the respondent money. However set-offs or deductions to the value of the applicant'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 applicant and serves the determination on both the applicant and the respondent plus provides a copy to the Building Commission. The determination is not released until the adjudication fees have been fully paid.
Under the Act, the adjudicator will equally split the fees unless one party has incurred costs because of frivolous or vexatious conduct or made unfounded submissions. The respondent must pay the applicant any of the adjudicator's fee which was prepaid by the applicant.
If a resolution is reached through negotiation, the parties may request the adjudicator to make a determination that gives effect to the negotiated settlement. Regardless, both parties remain responsible for the professional costs of the adjudicator.
Right to Withdraw:
An applicant may withdraw an adjudication application by providing written notice to Adjudicate Today (as agent of the adjudicator) and the respondent. Both parties remain responsible for any professional costs of the adjudicator to the time of withdrawal.
Request for Mediation:
The parties may agree in writing to extend the time for the Adjudicator to make the determination but, without the consent of the Adjudicator, they cannot suspend the adjudication, for example, to permit negotiations or mediation.
Unless the parties agree in writing to the contrary, the Adjudicator will not act as the mediator but will promptly advise Expert Today Pty Ltd in respect of the mediation request.
Please move to the next step on the WA flowchart being "The Respondent must pay any adjudicated amount on or before the date determined by the adjudicator.