WA: Giving an adjudication review response

Outline

Where an adjudication review application has been made you may give an adjudication review response to the review adjudicator, subject to such response being given within 10 business days after you received a copy of the adjudication review application.

An adjudication review response:

1. must be given in writing; and
2. must identify the adjudication review application to which it relates; and
3. may contain submissions relevant to the response that you choose to include.

What you cannot include are any reasons for a matter in your response unless those reasons were raised in the original application being reviewed.

An adjudication review response can be made either via the online Lockbox (Lockbox wizard coming soon in the meantime please download and complete the adjudication review response form).

Submissions made in support of adjudication review response

This is an important part of the documentation you will be providing to the review adjudicator because it is here that you will be setting out your arguments in response to what has been detailed in the adjudication review application. This document can be uploaded to your Lockbox or be in a separate document to the template.

Your submissions should address each and every reason that the other party had set out in its adjudication review application. If, for example, the basis of the adjudication review application is that the original adjudicator made an incorrect decision relating to jurisdiction, then you should set out your arguments as to why you consider that decision was correct, by reference not only to the reasons that the original adjudicator had given in their decision, but also to the Act, the contract and/or relevant case law.

Similarly, if the basis for the adjudication review application is that the original adjudicator had arrived at incorrect conclusions and/or made incorrect assessments, then you should set out your response to each of the applicant’s arguments.

In doing so you may set out your arguments as to why you consider that the adjudicator had in fact arrived at correct conclusions and/or assessments, and you may also include documentation that supports your position (e.g. a witness statement in the form of a statutory declaration or an expert report).

What you cannot include are any reasons for any matter unless those reasons were raised in the original adjudication being reviewed. You cannot for example argue to be entitled to be paid for an additional item of work, or that since lodging your payment claim you have carried out more work and therefore seek a larger amount than originally claimed, or that an additional item of work has since been discovered to be defective and that the costs of rectifying this defect should be taken into account by the review adjudicator.

Give a copy of the adjudication review response

You must give a full copy of your adjudication review response to the other party within 1 business day after you gave your response to Adjudicate Today. Both Adjudicate Today and the other party must be served with the identical adjudication review response.

How is an adjudication review response served on Adjudicate Today?

Service on Adjudicate Today can be made by any of the following methods:

1. Electronic File Delivery via lockbox. You can send very large electronic files directly to Adjudicate Today. All files are sent over a secure connection. They are transmitted from your personal lockbox to the Adjudicate Today lockbox. We recommend against using email as email may not be received. All files submitted to the Adjudicate Today lockbox are acknowledged by an automated email within a couple of minutes. If the date and time stamped email is not received, there has been a problem. Please email our office: wa@adjudicate.com.au or phone 1300 760 297.
2. Electronic File Delivery via Email. wa@adjudicate.com.au.
3. Electronic File Delivery via Fax: 1300 760 220. Adjudicate Today permits service of notices and other documents by fax.
4. Following any form of electronic file delivery (Lockbox, email or fax), you may be requested to provide Adjudicate Today with one (1) hard copy of any electronic files. Please read our disclaimer for details on rights and obligations for the delivery of electronic files.
5. Physical Delivery. We accept delivery in any of our Australian offices (normal business hours). Our WA address is Level 28, AMP Tower, 140 St Georges Terrace, Perth, 6000. A map to the WA office and addresses of other State offices are found on our Contact Us page.

How is an adjudication review response served on the other party?

Unless otherwise agreed by the parties, the adjudication review response must be provided to the other party during normal business hours at the other party's ordinary place of business or in accordance with the WA Electronic Transactions Act 2011 section 14. Your lockbox may be used to transmit adjudication applications, regardless of whether the other party has a lockbox.

In our experience, this is the safest ranking to ensure service:

1. Use your lockbox to send the adjudication review response to the other party
2. Courier - signature required
3. Mail - Express Post: keep express post tracking number for delivery verification
4. 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"
5. In person - Ensure a receipt is obtained or
6. A different method only where such method is provided under the relevant construction contract. Please note that service by fax is only valid if provided by the contract. If service by fax is permitted, print and keep full page fax journal report as evidence of transmittal.

Tips:

• You are strongly advised to keep a record of the time, date and manner of service of the adjudication review response on the other party. Otherwise they may deny receipt of the adjudication review response in which case you must be able to evidence the date of service.
• When items are sent by ordinary post, there is generally insufficient time for them to be received. Items sent by ordinary post are deemed to be received on the fourth working day after posting but the adjudication review response must be received by the other party within one business day. If the response is not received by the other party within 1 business day, it is invalid.
• Should fax be permitted by contract as a form of service, ensure you retain the full page fax receipt and refrain from sending colour photographs, and plans as they are generally rendered unreadable. Lengthy faxes have been known to lose pages in transmission.

When Adjudicate Today receives a review response from your Lockbox, a digital link is provided which you can use to serve your review response on the the other party, provided the contract does not prohibit electronic communication and you email it to the address permitted by contract or to the same email address used in all previous communications.

If the contract stipulates a way of giving documents, such as to a particular person or email address, the adjudication review response must be given to the other party in that way.

If the other party is a corporation, the application may also be served in accordance with the requirements of the Corporations Act 2001 (Cth).

Return to the adjudication review landing page.

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