What if the respondent doesn’t pay the adjudication amount? (Sections 24 & 25)
The claimant can ask the Authorised Nominating Authority (ANA) to provide an adjudication certificate. The claimant can then get a judgment debt by filing the following documents with the court:
- the adjudication certificate
- the 'Registration/filing of certificate of judgment or order' form, and
- an affidavit.
The affidavit must state that the whole or any part of the adjudicated amount has not been paid at the time the certificate is filed. The affidavit must be sworn or affirmed before a Justice of the Peace or solicitor. Fees will be payable to the ANA and the court. The court will then give the claimant a certificate of judgment.
The judgment debt is enforceable in the same way as any court judgment, without the need for the court to decide the matters in dispute. Access court documents and forms online in our Related information section.
What can the claimant recover after adjudication?
The claimant can recover what is set out by the adjudicator and certified by the ANA. This will be the amount of the payment due and can also include:
- the respondent's share, if any, of fees paid by the claimant
- interest on any unpaid progress payment from the date due to the date of the certificate.
Where you start your case is determined by the amount claimed:
- up to $10,000: the Small Claims Division of the Local Court
- more than $10,000 and up to $100,000 (or $120,000 in some limited circumstances): the General Division of the Local Court
- above $100,000 (or $120,000 in some limited circumstances): the District Court or the Supreme Court.
You don’t have to issue a summons. If the respondent wants to stop it, they must apply to the court to set aside the judgment. To do so, the respondent must pay the outstanding portion of the adjudicated amount.
If the respondent does this, the claimant will usually need a solicitor to help them oppose it.
Can I exercise a lien? (Section 11)
First, a lien is the right to seize goods in order to obtain payment. Once a progress payment is due and payable, the claimant can exercise a lien over any unfixed plant or materials supplied by the claimant for use in the construction work. If you, the respondent, have failed to pay the adjudicated amount, a lien is one way of recovering some or all of the money you owe.
Can I use the Contractors Debts Act to recover payment? (Section 25)
The claimant may also use the Contractors Debts Act 1997 where they are a subcontractor doing work for or providing goods to a head contractor who has been hired by a principal. When lodging the adjudication certificate, the claimant would ask the court for a debt certificate under section 7 of the Contractors Debts Act 1997. The debt certificate directs the principal to pay the claimant's judgment debt from any money that may be due to the main contractor. We strongly recommended that the claimant get legal advice before taking this course of action.