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Am I able to apply for
adjudication?
The
Act will apply to you if;
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You have carried out "construction
work" or "related goods and services"
under a construction contract (written or oral)
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The work was carried out
in New South Wales.
The Act will not apply
in the following circumstances;
-
Construction contract
forming part of a loan agreement
-
Construction contract for
residential building work as defined by the
Home Building Act 1989
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Construction contracts
where the consideration payable is calculated
otherwise by reference to the value of the work
carried out.
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Employees as defined by
the Industrial
Relations Act 1996
If you are not sure
whether you are able to apply for Adjudication under
Security of Payments Legislation, please contact us at ASC on 1300 722 624.
When am I able to submit
my payment claim?
You are able to submit your
payment claim on the date stated in the contract or if
the contract does not provide a reference date
the last day of the named month in which the
construction work was first carried out or the related
goods and services were supplied under the contract.
Who has a right to a
progress payment?
You are entitled to a
progress payment if you have carried out construction
work under a construction contract or have supplied
related goods and services under a construction
contract.
Payment Claim When is the
due date for payment?
The due date for payment
will be in accordance with your contract however if
there is no payment term provisions in your contract the
due date for payment will be 10 business days after the
payment claim is made pursuant to Section 15.
Am I able to obtain
interest on overdue payments?
The Adjudicator will
determine the interest due on unpaid amounts of the
progress payment.
Interest will be due and
payable at the rate:
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Prescribed under the
Supreme Court Act 1970 in respect of unpaid judgments
of the Supreme Court, or
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Specified under the
construction contract
Whichever is greater.
Payment Claim Is the
respondent able to withhold payment until they receive
payment under another contract?
The Respondent is unable to
withhold payment on the basis that they are waiting for
payment under another contract. This is deemed a "pay
when paid" provision and is therefore void.
What is a payment claim?
A "payment claim" is
terminology used in the Act to describe what would
normally be called a tax invoice, progress claim, final
claim etc.
The payment claim must
identify the construction work or related goods and
services to which the progress payment relates. It must
state the amount of the progress payment that the
claimant is claiming and must state
"This payment claim is made
under the Building and Construction Industry Security of
Payments Act".
What is a payment
schedule?
When the respondent
receives the payment claim from the claimant they should
serve a payment schedule on the claimant within 10
business days of receiving the payment claim. The
payment schedule must identify the payment claim to
which it relates and must state the amount of the
payment, if any, that the respondent proposes to make.
If the scheduled amount is
less than the claimed amount, the respondent must state
reasons why the scheduled amount is less than the
claimed amount.
Payment Claim The
respondent has not provided a payment schedule, what is
my next step?
If the respondent fails to
provide a payment schedule within 10 business days, then
the claimant will need to wait for the due date for
payment to lapse.
Once the due date for
payment has lapsed and no payment has been received or
only part of the payment has been received, the claimant
may recover the amount as a debt owing in any court of
competent jurisdiction or take steps to apply for
adjudication. If the claimant elects to apply for
adjudication, the claimant must send out the appropriate
5 day notice under section 17 notifying the respondent
of their intention to proceed with adjudication.
Payment Claim I have
received a payment schedule but the respondent has not
paid me in accordance with the payment schedule?
If the respondent has not
paid you in accordance with the payment schedule you may
recover the unpaid amount as a debt owing in any court
of competent jurisdiction or make an adjudication
application under section 17(1)(a)(ii) in relation to
the payment claim.
When must I submit my
adjudication application?
Who must I submit my
application to?
The claimant must serve
their adjudication application on an Authorised
Nominating Authority properly appointed by the Minister
of the Act. Australian Solutions Centre is an Authorised
Nominating Authority.
Payment Claim How long
will I need to wait before a decision is made?
At ASC the Adjudicator will
accept the application within four business days of ASC
receiving the application. Once the Adjudicator accepts
the application, the Adjudicator will have ten business
days to make a determination.
How is the Adjudicator
appointed?
When ASC receives an
Adjudication application, a case manager is appointed.
The case manager will be the point of contact for both
the claimant and respondent. The case manager will
manage the case from start to finish and will be able to
answer any of your questions regarding the process.
The Case Manager will
determine which adjudicator would be best suited to
decide the adjudication application.
The process of selecting
the appropriate adjudicator will have regard for the
following;
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The Case Manager is to
read through the application to ascertain the nature
of non-payment for the dispute ie technical issues,
legal issues or general contract issues.
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Based on the information
ascertained the adjudicator will be chosen based on
the nature of the dispute, trade or discipline, area
of expertise and experience.
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Two adjudicators will be
selected - a 'primary' adjudicator and one 'reserve'
adjudicator. Both the primary and reserve
adjudicators will be contacted by the Case Manager.
If the 'primary' adjudicator cannot accept the
nomination then the 'reserve' adjudicator will be
nominated immediately.
To ensure that issues of
probity are maintained, prior to nomination there will
be a requirement for each adjudicator to declare the
following:
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They have the
qualifications, expertise and experience necessary to
competently carry out the adjudication in accordance
with the Act;
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They are not a party to
the contract;
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They will at all times
act in accordance with the ASC Code of Conduct; and
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They consider they have
no conflict of interest in adjudicating this
application.
What will the
Adjudicator determine?
The adjudicator will
determine:
a)
The amount of the progress
payment (if any) to be paid by the respondent to the
claimant (the
adjudicated amount),
and
b)
The date on which any such
amount became or becomes payable, and
c)
The rate of interest
payable on any such amount.
Payment Claim What is a
determination?
The adjudicator's
determination must:
a) Be
in writing, and
b) Include
the reasons for the determination (unless the claimant
and respondent have both requested the adjudicator not
to include those reasons in the determination).
In determining an
adjudication application, the adjudicator is to consider
the following matters only;
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provisions of Act
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the construction contract
provisions
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payment claim together
with submissions duly made supporting the claim
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payment schedule together
with submissions duly made supporting the schedule
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results of any inspection
by adjudicator.
If I am successful,
when is the respondent required to pay?
The respondent is required
to pay the adjudicated amount 5 business days after the
date on which the adjudicator's decision is served on
the respondent or at a later date which the adjudicator
decides.
What happens if the
respondent does not pay the adjudicated amount?
If the respondent fails to
pay the whole or any part of the adjudicated amount in
accordance with section 23 the claimant may request an
adjudication certificate from the ANA. The Adjudication
certificate will state who is liable to pay the
adjudicated amount, the adjudicated amount, the due date
for payment of the adjudicated amount and any interest,
which is due and payable. The Adjudication certificate
can then be filed in a court of competent jurisdiction
as a judgment for debt.
Payment Claim When am I
able to request an adjudication certificate?
The claimant is able to
request an Adjudication certificate once the due date
for payment has lapsed which is 5 business days after
the determination has been released to the parties or at
a late date decided by the adjudicator.
Payment Claim What do I
do with the adjudication certificate?
See adjudication
certificates.
Payment Claim Who pays
the adjudication fees?
It is the policy at
Australian Solutions Centre that no adjudication
decision will be released until the adjudicator's fees
are paid. ASC will send a letter to both parties
notifying each party of the fees. Once the fees are paid
by one or both parties, the decision will be released to
both parties. The adjudicator will state who is liable
for the adjudicator's fees in the decision. Accordingly,
if the claimant has paid the fees for the purposes of
release but the decision states that the claimant and
respondent are equally liable for the adjudicator's
fees, the respondent will be required to pay the
claimant their share of the fees within 5 business days
of being served with the decision or at a later date
decided by the adjudicator.
If
assistance or further information is required please
contact us on 1300 722 624
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