Industries & Occupations
Frequently asked questions - Responding to an Adjudication Application
Am I entitled to respond to an adjudication application?
The respondent can only lodge a submission with the adjudicator if the respondent has provided a payment schedule to the claimant within:
- the 10 business days (20 business days if the respondent is a residential home owner) allowed by the Act after being served the payment claim, or
- 5 business days allowed by the Act after being served a notice from the claimant of the intention to apply for adjudication as a result of the claimant not being paid by the due date of payment and not being provided with an initial payment schedule
The adjudicator cannot consider a submission made by the respondent after the latter of
- 10 business days after the respondent received a copy of the adjudication application, or
- 5 business days after the respondent received notice of the adjudicator's acceptance of the application.
How do I respond to an adjudication application?
Respondents should note that an adjudication response:
- must be in writing
- must be addressed to the adjudicator and be received by the adjudicator within time
- must at the same time be served on the claimant
- must not include any reasons for withholding payment unless those reasons have been included in the payment schedule
- should include full details of reasons given in the payment schedule for refusing to pay or withholding payment of any amount (attach any document necessary to evidence or support those reasons such as expert reports and photograph's evidencing defective work or statutory declarations from witnesses)
- may contain submissions relevant to the response (if documentation other than that provided in the adjudication application is referenced, then documents should be attached to the response), and
- may respond to issues raised in the adjudication application, such as arguments that the claimant is not entitled to claim amounts additional to those in the payment claim or to change the payment claim.
Can an adjudication response raise any new issues which were not raised by the Respondent in their 'payment schedule'?
- The response:
-
- CANNOT add any new reasons for dispute of the payment claim, that were not already identified in the payment schedule.
- CAN expand upon the reasons already outlined in the payment schedule.
How long does an adjudicator have to make a determination?
The adjudicator has either:
- Ten (10) business days after the adjudicator has notified the claimant and respondent of acceptance of the application, or
- a period agreed to by both the claimant and the respondent.
How does the adjudicator determine the adjudication application?
In determining an application, an adjudicator must consider the following matters only:
- the Building and Construction Industry Security of Payment Act 2009
- the contract (oral or written)
- the payment claim
- the payment schedule (if any)
- the adjudication application
- the adjudication response (if any)
- the results of an inspection (if any), and
- submissions and documents made by the parties at a conference (if any), called by an adjudicator.
What does an adjudicator determine?
The adjudicator determines:
- the amount of the progress payment, if any, that the respondent must pay the claimant
- the date on which the amount became, or becomes, payable
- the rate of interest payable on such amount, and
- the proportion of adjudication fees payable by each party.
if, in previous adjudication, the adjudicator or another adjudicator has determined the value of the work, goods or services, the adjudicator must give that work, goods or services the same value, unless the claimant or respondent satisfies the adjudicator that the value has changed since the previous adjudication.
The determination must be in writing, unless both parties request otherwise, the determination must include the reason for the determination.
What happens after the adjudicator determines the application?
If so determined, the respondent must pay the claimant the determined amount by the due date specified in the adjudicator's determination.
If the respondent refuses to comply with an adjudicator's determination the claimant can then ask the NA to provide an adjudication certificate. The adjudication certificate is then filed in the court as a judgement. The claimant must support the certificate with an affidavit stating that the determined amount is still outstanding.
The judgement debt is then enforceable in the same way as any court judgement, without the need for the court to decide the matters in dispute.
What does an adjudication decision contain?
- The Adjudicator:
-
- Must give a written decision
- Include the reasons for the decision
- The Adjudicator is to decide the:
- 'Adjudicated amount' of the progress payment, if any, to be paid by the Respondent to the Claimant
-
- Date the 'adjudicated amount' becomes payable
- Rate of interest payable.
When should a Respondent pay any amount decided by an adjudicator to a Claimant?
- The Respondent must pay any amount decided by the adjudicator, by the 'relevant date' which is prescribed as:
-
- 5 business days of receiving the decision; or
- If the Adjudicator decides a later date that the amount becomes payable, then that date.
