Adjudication in South Australia is the dispute resolution process within the The SA Building and Construction Industry Security of Payment Act 2009 (the Act) which applies to construction work and/or related goods and services carried out in South Australia.  Be mindful of:

Cross state legislation' which is where you may be a Claimant in South Australia but the construction work or related goods and services was carried out in another State.

1. The Payment Claim -

   The Claimant must serve a Payment Claim on the Respondent.  The payment claim must contain the words ‘This is a payment claim made under the Building and Construction Industry Security of Payment Act 2009’ and clearly identify the construction work or related goods and services carried out, identify the Respondent, the amount of payment which is due and any other information required as per the construction contract.  For example, the contract may require  you to provide a statutory declaration with the payment claim.

   LESSON: Be sure you know the requirements under the contract before sending your payment claim.

   The payment claim must be served on or from the reference date. The reference date will be the time stipulated in the contract (for example the 26th day of the month) or, if there is no time stated, then the last day of the month for works or goods   and services carried out up to that date.

   Service of the payment claim on the Respondent can be done by way of:

   • Facsimile (ensure to keep transmission report);

   • Express post (Australia Post provides a tracking facility);

   • Registered mail (Australia Post provides a tracking facility);

   • Courier (Signature required);

   • Hand delivery (Signature required); or

   • Any other method provided under the Contract.

   If you are serving the payment claim by regular post ensure you have the correct address of the Respondent as per the contract.

   The Claimant must ensure you know who the Respondent is! For example, you may think you are working for modern Kitchens when you are really working for Modern Kitchen Installations Pty Ltd. Refer to information in Resources below.

2. The Payment Schedule -

   The Respondent may agree to the claimed amount and pay such amount on the due date for payment OR reply to the claim by providing a Payment Schedule. The Payment Schedule must:

   • Identify the Payment Claim; and

   • Must indicate the amount of payment (if any) that the Respondent proposes to make.

   IMPORTANT: A payment Schedule must be served within the time required under the construction contract, or within 10 business days after receipt of the Payment Claim (whichever expires earlier).

   The Respondent has 15 business days to provide a Payment Schedule after receipt of the payment claim. The payment schedule must identify the payment claim, must indicate the amount of payment (if any) that the Respondent proposes to make. If the amount of payment is less than the claimed amount the Respondent must indicate why the schedule amount is less and provide reasons for withholding payment. In these circumstances if the Claimant does not agree with the   payment schedule the Claimant is entitled to make an adjudication application.  The adjudication application must be lodged within 15 business days after receipt of the payment schedule. Remember, a copy of the adjudication application   must be served on the Respondent.

   No Payment Schedule: If there is no payment schedule, you then wait for the due date for payment being:

     (a) On the day when the payment becomes payable in accordance with the terms of the contract; or

     (b) If the contract makes no express provisions with respect to the matter – on the date occurring 15              business days after a payment claim is made

   before giving the Respondent a second and last chance to give you a payment schedule. 

   WHAT IF the Respondent does not provide a Payment Schedule within the required time and does not pay the claimant the claimed amount on the due date for payment?

   The claimant must notify the Respondent within 20 business days immediately following the due date for payment of it’s intention to apply for adjudication and gives the Respondent another opportunity to provide a Payment Schedule within 5 business days, this is referred to as S17(2) Notice.

   If the Respondent does not provide a Payment Schedule within the required time or pay all or any part of the claimed amount on the due date for payment then the Claimant may recover the claimed amount or unpaid portion as a debt due in any court of competent jurisdiction or make an adjudication application and may serve notice of the Claimant’s intentions to suspend carrying out the construction work or suspend the supply of related goods and services.

   Prior to the making of an adjudication application, the Claimant must first notify the Respondent of it’s intention to apply for adjudication.  In this circumstance the Claimant must notify it’s intention within 20 business days immediately   following the due date for payment that the Claimant intends to apply for adjudication and provide the Respondent with an opportunity to provide a payment schedule within 5 business days, this is referred to as a S17(2) Notice.

   If the Respondent does or does not provide a payment schedule within 5 business days after receipt of the intention notice, the Claimant has 10 business days at the END of the 5 day period to lodge an Adjudication Application.

3. Section 17(2) Notice 
4. Adjudication Application                                                                                                                                  
5. Adjudication Response -                                                                                                                                                         If the Claimant applies for adjudication and the Respondent has not provided a Payment Schedule in either circumstance, the Respondent is NOT eligible to provide an Adjudication Response for an Adjudicator to consider. This could be   detrimental to a Respondent as it is most likely the adjudicator will find in favour for the Claimant once he/she is satisfied the process has been strictly adhered to and the documents provided by the Claimant support the Claimant’s claim.
6. Adjudication Certificate