WA: Applicant Disagrees with Notice of Dispute
If the applicant disagrees with any or a nil payment proposed in the notice of dispute, the applicant can apply to Adjudicate Today for adjudication. Alternatively the parties can seek to reach agreement on the appointment of a preferred adjudicator.
Upon request, Adjudicate Today will seek to facilitate the appointment of an agreed adjudicator. However, if a party nominates an adjudicator and the other refuses consent to the appointment of that adjudicator, that adjudicator will not be appointed.An application for adjudication must be made within 90 business days of receiving the notice of dispute.
Why go to adjudication?
Adjudication is a quick and informal process introduced by government to 'keep the money flowing in the building and construction industry'. It represents an alternative to the often slow, expensive and difficult process of going to court. It is available to recover all progress payments that are due, including final payments and retention monies.
Adjudication was introduced in response to requests from industry groups for government intervention because members were either being paid too slowly or not at all.
Adjudication does not limit the rights of parties to litigate outstanding issues. It provides applicants with a quick decision on their claim for payment. Subject to very limited injunctive rights, a respondent must comply with the adjudicator's determination (i.e. pay the money) if they wish to commence proceedings in court. In effect, the traditional roles of court are reversed. Rather than the applicant litigating in court seeking to be paid, the applicant has possession of the money and the respondent must commence court proceedings to attempt to recover some or all amounts determined by the adjudicator. In practice, few respondents challenge the adjudicator's determination.
The process is simple and rapid. The adjudicator must make the determination available within 10 business days (unless the parties agree to an extension of time) from when the adjudicator received the adjudication response, or the date the response would have been due.
After adjudication, and if the respondent does not pay any determined amount by the relevant date, the applicant takes the certified adjudication determination (available from the Building Commission) to the appropriate court and registers it as a judgment debt.
Unlike litigation or arbitration, adjudication cannot result in a determination that the applicant must pay the respondent money. The maximum liability of the unsuccessful applicant is the amount of the adjudication fees. Even then, the fees are shared equally by the parties unless the adjudicator determines otherwise.
What happens now?
Once the applicant decides on adjudication, it is important that the correct procedures under the Act are followed. an important step is to check that the notice of the dispute complies with the Act and any applicable contract provisions. Generally, this means the notice of dispute should:
- be in writing and addressed to the applicant;
- provide the address, ABN (or, if known, ACN if no ABN), telephone, fax number and email of the applicant;
- identify the payment claim to which it relates;
- state the name of the party giving the notice of dispute (the respondent);
- provide the address, ABN (or ACN if no ABN), telephone and fax number of the respondent;
- identify the amount of payment that it is proposed be paid (it may be "nil");
- if the claim is being rejected because it is not made in accordance with the contract, give reasons why;
- if the claim is being disputed, identify each item of the claim that is disputed and give reasons why; and
- be signed by the party giving the notice.
Assuming the payment schedule is valid, please move to the next step on the WA flowchart which is "Applicant has 90 business days from receiving a Notice of Dispute to prepare & serve the Adjudication Application on the adjudicator (if one is agreed) or Adjudicate Today".