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WA: Respondent giving an application for adjudication review

Authorised Nominating Authority

Outline

A respondent may make an application for a review of an adjudicator’s determination if:

  1. it gave the claimant both a payment schedule and an adjudication response within the time allowed under the Act; and
  2. the adjudicated amount is $200,000 (incl. GST) or more than the scheduled amount; and
  3. the claimant had not already applied for a review of the adjudicator’s determination (or, if the claimant has already applied, the claimant has withdrawn its application).

A respondent cannot make an application for adjudication review challenging a decision that the adjudicator had jurisdiction to determine an adjudication application.

Further, a respondent cannot make an application for adjudication review unless the respondent has:

  1. paid to the claimant any part of the adjudicated amount that the respondent does not dispute; and
  2. paid the adjudicated amount (or part) that is disputed into a trust account with a recognised financial institution established by the respondent; and
  3. given the claimant written notice of the payment into the trust account, together with information that identifies the trust account.

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

Time within which to give an adjudication review application

You must make an application for adjudication review within 5 business days after you received a copy of the adjudicator’s determination. Applications made outside of this time will not be valid.

A business day is defined in the Act to mean a day other than –

  1. a Saturday, Sunday or public holiday; or
  2. any other day that falls between 22 December in any year and 10 January in the following year (inclusive)

For the purpose of counting business days, the day a document is given is business day 0.

To whom the adjudication review application is to be given

An application for adjudication review may be given to Adjudicate Today.

Once you have given your application for adjudication review, Adjudicate Today will appoint a registered review adjudicator from our panel within 5 business days of having received your application and the parties will then be advised of the name of that person.

Requirements relating to adjudication review application

A review adjudication application must:

  1. be in writing; and
  2. be accompanied by a copy of the following:
    1. the construction contract or the relevant provisions of the construction contract;
    2. the complete documentation that comprised the payment claim;
    3. the complete documentation that comprised the payment schedule;
    4. the complete documentation that comprised the adjudication application;
    5. the complete documentation that comprised the adjudication response;
    6. any submissions made to the adjudicator by the parties (including accompanying documents); and
  3. not include any reasons relating to matters in the adjudication review application unless those reasons were raised in the original adjudication.

You can include as part of the adjudication review application, submissions that you consider to be relevant in support of your application (see also below).

What the Act requires a review adjudicator to do?

Where an adjudication review application has been made, the review adjudicator is required to either

  1. confirm the determination of the original adjudicator; or
  2. “quash” that determination and make a new determination.

Where the review adjudicator has quashed the original adjudicator’s determination, the review adjudicator must determine –

  1. the amount of the progress payment, if any, to be paid by the respondent to the claimant; and
  2. the due date for payment of that amount; and
  3. the rate of interest payable on that amount.

The review adjudicator’s determination must specify:

  1. the amount that has already been paid by the respondent; and
  2. any excess amount that is repayable by the claimant and the date on which it becomes payable.

In determining the adjudication review application, the review adjudicator may consider only the following matters:

  1. the Act and the regulations;
  2. the relevant construction contract;
  3. the relevant adjudication review application and adjudication review response (if any), together with submissions (including accompanying documents) duly made;
  4. the relevant payment claim, payment schedule, adjudication application and adjudication response (if any), together with submissions (including accompanying documents) duly made.

What however the review adjudicator must not consider in determining an adjudication review application are:

  1. any adjudication review response that is given after the time period prescribed under the Act;
  2. any reasons for a matter that have been raised unless those reasons were raised in the original adjudication being reviewed; or
  3. any submissions (including accompanying documents) made to the review adjudicator that are not authorised to be made by the Act.

Submissions made in support of adjudication review application

As this is your application, you will bear the burden of providing materials to support your argument that the original adjudicator had, in the making of the adjudication determination, incorrectly or improperly assessed the adjudicated amount.

This is the most important part of the documentation you will be providing the review adjudicator and you should therefore give careful consideration as to how you structure and set out your arguments. This document can be uploaded to your Lockbox or be in a separate document to the template.

You may, for example, consider that the original adjudicator’s assessment of several of the claimant’s claimed items were excessive or that, in arriving at the assessment of items, the adjudicator failed to have due regard to the evidence you had provided, or that the adjudicator’s assessment had not been made in accordance with the terms of the contract.

Alternatively, you may consider that the adjudicator had incorrectly determined that the claimant was entitled to a claimed variation by incorrectly rejecting your argument that the claimed variation was work that fell within the claimant’s original scope, or that the value that the adjudicator had given to a claimed variation was excessive, or that your claim to deduct liquidated damages had been incorrectly rejected.

The submissions that accompany your adjudication review application should set out why you consider the original adjudicator’s reasons and conclusions to be incorrect, and you can provide documentation to support your position (e.g. a witness statement or an expert report from a quantity surveyor).

Finally, if you make an assertion within your submissions, then make sure that you have substantiated this by reference to relevant documentation and that this can be easily referenced by the review adjudicator. Don’t assume that because you have provided a bundle of documents that have not been referenced within your adjudication review application, that the review adjudicator will understand or appreciate why such documents have been included and take them into account in the making of the review determination. For example if you include photographs, then you should explain what those photographs are intended to show and why their inclusion is relevant to your case.

Finally, give a copy to the claimant

You must give a full copy of the adjudication review application to the claimant within 1 business day of giving your application to Adjudicate Today. Both Adjudicate Today and the claimant must be served with the identical adjudication review application.

How is an adjudication review application 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 adjudication applications, notices and other documents by fax.
  4. Following any form of electronic file delivery (Lockbox, email or fax), the respondent 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 application served on the claimant?

Unless otherwise agreed by the parties, the adjudication review application must be provided to the claimant during normal business hours at the claimant'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 review applications, regardless of whether the claimant has a lockbox.

In our experience, this is the safest ranking to ensure service of the adjudication review application:

  1. Use your lockbox to send the adjudication review application to the claimant
  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 - generally the claimant). 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:

  • Respondents are strongly advised to keep a record of the time, date and manner of service of the adjudication review application on the claimant. A claimant may deny receipt of the adjudication review application in which case the respondent 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 application must be received by the claimant within one business day. If the application is not received by the claimant 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.

Upon receipt of the review application, Adjudicate Today appoints an appropriate review adjudicator from our panel of registered adjudicators to determine the matter. Parties must not seek to influence Adjudicate Today in appointing any particular adjudicator. However if parties agree to the appointment of a particular review adjudicator after the adjudication review application is filed, Adjudicate Today will seek to accommodate the agreement.

Within 5 business days of receipt of an application, Adjudicate Today will provide a formal Notification of Acceptance of the adjudication review application on behalf of the appointed review adjudicator.

When Adjudicate Today receives a review application from your Lockbox, a digital link is provided which you can use to serve your review application on the claimant, 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 application must be given to the claimant in that way.

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

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