WA: 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. With no evidence to rebut the claimant's position, the adjudicator will often, but not always, determine that the claimant is entitled to the full amount claimed.

Is there anything 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 successful. An obligation still rests with the adjudicator to consider the requirements of the Act, and be satisfied that work has been done and is properly valued. Therefore the claimant must satisfy the adjudicator of certain key issues, including:

• The payment claim and s28(2) notice were served on the respondent's normal place of business or otherwise as specified in contract and/or the WA Electronic Transactions Act 2011 section 14 and within the time requirements of the Act
• There was a construction contract between the parties for work in the State of Western Australia
• 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 meaning they consider there is a legal reason an adjudicator has no right to make a determination e.g. there was no construction contract in existence between the parties for work in the State of Western Australia.

How an adjudicator responds to a jurisdiction submission from the respondent is a matter for him or her to determine; however Adjudicate Today adjudicators will generally ask the claimant for their view 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 WA flowchart being "Adjudication Determination. The Adjudicator has 10 business days to determine the Adjudication Application from the date of receipt of the Adjudication Response or the date the Response would have been due or, if the Respondent has no right to serve a Response, 10 business after the Claimant and Respondent received notice of the Adjudicator's acceptance of the Adjudication Application. Time may be extended by agreement of both parties by a maximum of an additional 20 business days"