Can a respondent lodge a response to an adjudication application? (Section 20)
The respondent can only respond to an adjudication application if they have provided a payment schedule to the claimant within:
- 10 business days after being served the payment claim; or
- five business days after being served a notice from the claimant of their intention to apply for adjudication (as a result of the claimant not being provided with an initial payment schedule and not being paid by the due date of payment).
The adjudicator can't consider a response received after:
- five business days after the respondent received a copy of the adjudication application; or
- two business days after the respondent received notice of the adjudicator's acceptance of the application.
How should a response to an adjudication application be made? (Section 20)
- must be in writing
- must be addressed to the adjudicator and be received within the set timeframe
- must be served on the claimant at the same time
- must not include any reasons for withholding payment unless those reasons were 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
- may contain submissions relevant to the response
- may respond to issues raised in the adjudication application.
How long does an adjudicator have to make a determination? (Section 21)
The adjudicator has 10 business days to make a determination after notifying the claimant and respondent that an application has been accepted. However, a longer time may be given if agreed to by both parties.
How does the adjudicator determine an application? (Section 22)
In determining an application, an adjudicator must consider the following matters only:
- the Building and Construction Industry Security of Payment Act 1999
- the contract (verbal or written)
- the payment claim (including any relevant supporting documentation)
- the payment schedule (if any - including any relevant supporting documentation)
- the adjudication application (including any relevant supporting documentation)
- the adjudication response (if any - including any relevant supporting documentation)
- the results of any inspection.
What does an adjudicator determine? (Section 22)
The adjudicator determines:
- the amount of any progress payment that the respondent must pay the claimant
- the date on which the amount is or was payable
- the rate of interest payable on the amount
- how ANA and/or adjudicator fees are split between each party.
If another adjudicator has determined the value of the work, goods or services, the new adjudicator must give that work, goods or services the same value, unless the claimant or respondent shows them that the value has changed since the previous adjudication. The determination must be in writing, unless both parties request otherwise. It must include the reason for the determination.
What happens after the adjudicator determines the application? (Section 23)
The respondent must pay the claimant any amount due by the date in the adjudicator's determination. If the respondent refuses to comply, the claimant will need to take steps to enforce payment.