Am I able to apply for Adjudication?

You will be eligible to apply for adjudication under the Building and Construction Industry Payments Act 2004 if you have entered into a construction contract after the 1 October 2004.

• The contract may be written or oral or partly written and partly oral.

• The contract must have been carried out in Queensland

• Construction work including provision of goods and services related to the construction contract.

The Act does not apply to; 

• A construction contract which forms part of a loan agreement, contract of guarantee or a contract of insurance under which a recognised financial institution undertakes to lend money, to guarantee payment or provide indemnity relating to the construction contract.

• A construction contract carried out for a resident owner as defined by the Domestic Contracts Act 2000, who is a party to the contract.

• A construction contract where the consideration payable is calculated in reference to the value of the work carried out or the value of the goods and services supplied.

• Employees of a company.

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.

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 Payments Act".

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?

Interest can be obtained on overdue payments.

The Adjudicator will award interest on the unpaid amount at the greater of the following rates;

• The rate prescribed under the Supreme Court Act 1995, section 48(1) for debts under a judgement or order; or

• the rate specified under the contract.

Section 15

(3) For a construction contract to which Queensland Building Services Authority Act 1991, section 67P applies because it is a building contract, interest is payable at the penalty rate under that section.

Is the respondent able to withhold payment until he receives payment under another contract?

In accordance with section 16 the respondent is not able to withhold payment until he receives payment under another contract. This is deemed a "pay when paid" provision and is therefore void.

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 the reasons why the scheduled amount is less than the claimed amount.

The Respondent has not provided a payment schedule, what is my next step?

If the respondent does not provide a payment schedule, the claimant is entitled to believe that the respondent will pay the claimed amount by the due date for payment. However, once the due date for payment lapses and no 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 21 notifying the respondent of their intention to proceed with adjudication. 

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 21(1)(a)(ii) in relation to the payment claim.

When must I submit the Adjudication Application?

• Where the respondent has provided a payment schedule which you do not agree with, you will be required to submit your application to the ANA within 10 business days of receiving the payment schedule.

• Where you have received a payment schedule and the respondent has failed to pay the whole or any part of the scheduled amount to the claimant by the due date for the payment, the claimant must submit their application within 20 business days after the due date for payment.

• Where you have not received a payment schedule, your application will be due at the end of the 5 day period referred to in subsection 21(2)(b).

Who must I submit my application to?

The claimant is required to submit the adjudication application to an Authorised Nominating Authority. Australian Solutions Centre is an Authorised Nominating Authority.

How long will I need to wait before a decision is made?

The Adjudicator must make a decision within 10 business days after the Adjudication response is due or should be due.

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:

• 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.

• Based on the information ascertained the adjudicator will be chosen based on their relevant background, area of expertise and experience.

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: They have the qualifications, expertise and experience necessary to competently carry out the adjudication in accordance with the Act;

• They have the qualifications, expertise and experience necessary to competently carry out the adjudication in accordance with the Act;

• They are not a party to the contract;

• They will at all times act in accordance with the ASC Code of Conduct; and

• They consider they have no conflict of interest in adjudicating this application.

What will the Adjudicator decide?

The Adjudicator will decide the amount of the progress payment if any to be paid by the respondent to the claimant, the date on which any amount became or becomes payable and the rate of interest payable on any amount.

The decision will be in writing and will include reasons for the decision unless the claimant and respondent have both asked the adjudicator not to include the reasons in the decision.

In deciding the application, the adjudicator is to consider the following matters only;

• The provisions of the Act

• The construction contract whether written or oral

• The payment claim together with all submissions properly made by the claimant in support of the claim

• The payment schedule, if any, together with all submissions properly made by the respondent in support of the schedule;

• The results of any inspection carried out by the adjudicator of any matters to which the claim relates.

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 adjudicated amount, the claimant is able to request an adjudication certificate from the authorised nomination authority, which can then be filed in a court of competent jurisdiction, as a judgment for debt.

When am I able to request an Adjudication certificate?

An adjudication certificate can be requested by the claimant if the respondent does not 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 on which the adjudicator decides.

What do I do with the Adjudication certificate?

See adjudication certificates

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