WA: Respondent Serves Payment Response (Notice of Dispute) within Time
A payment response (the Act calls this a notice of dispute) need only be prepared if the respondent does not propose to pay the full amount claimed by the due date for payment.
What is a notice of dispute?
A notice of dispute is the notice in writing which should be served on the applicant by the respondent if the respondent does not intend to pay the full or part of a claimed amount by the due date for payment. This applies even if the respondent believes the applicant is not entitled to make the claim or if the respondent denies being party to the contract.
What is the due date for payment?
The due date for payment is usually set out in the contract. It can be any period up to 42 days after receipt of the payment claim. In the absence of an explicit contractual provision, the Act implies the due date for payment is 14 days after receipt of the payment claim.
A notice of dispute must::
- be in writing and addressed to the applicant;
- provide the address, ABN (or, if known, ACN if no ABN), telephone and fax number of the applicant;
- identify the payment claim to which it relates;
- state the name of the party giving the notice;
- 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.
In the event that no notice of rejection or dispute is given, the payment claim must, subject to contract or if there is no written contract, be paid within 28 days of it being received.
A notice of dispute (the contract may give it another name) is not served until it is received by the applicant or lodged during normal business hours at the applicant's ordinary place of business, so that it reaches the applicant no later than the due date for payment being 14 days after receipt of the payment claim.
The contract may amend the 28 days for payment of a payment claim from when it is received and the 14 day period for serving a notice of dispute, provided that the total of both periods does not exceed 42 days.
We recommend that a record of the time, date and manner of service on the applicant be kept. An applicant may deny receipt of the notice of dispute or claim receipt after the expiry of due date for payment. In this case, the respondent must be able to evidence the date of service.
With retention moneys and security, if there is nothing agreed to in the contract, then under the implied provisions of the CCA a contractor may claim for payment of retention moneys or the return of security if they have not occurred by the due date under the contract.
What happens if the respondent provides a notice of dispute for less than the amount claimed?The applicant can:
- accept the situation and wait for the respondent to pay any proposed amount by the due date for payment. In this case click here to go to 'Applicant accepts any proposed payment in Notice of Dispute'; or
- sue in court or commence any dispute resolution process permitted by the contract (not recommended as both expensive and lengthy); or
- apply in writing to Adjudicate Today for appointment of an adjudicator; and/or
- request in writing for Adjudicate Today to seek to facilitate agreement with the respondent for the appointment of a preferred adjudicator. If a party nominates an adjudicator and the other party refuses consent to that appointment that adjudicator will not be appointed; or
- seek the respondent's written agreement to the appointment of a preferred adjudicator. It may be that the contract requires, subject to the agreement of the adjudicator, the appointment of a nominated adjudicator.
What happens if the respondent provides a notice of dispute but fails to pay the scheduled amount by the due date for payment?
The applicant has a number of alternatives. Click here to go to 'Full or any part of claimed amount NOT paid by Due Date for Payment'.