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Contractors entitled to an adjudication decision under the Security of Payment Act in Australia | Contracts Specialist

How to Enforce a Judgement

An adjudication determination is the final step in the adjudication process. In this article, we discuss how to enforce a judgment.

In the Security of Payment Act, a contractor may apply for adjudication if he/she was not paid nor responded with a payment schedule by the client. The contractor may also file for adjudication if the respondent issued a payment schedule, but gave less than the claimed amount.

An adjudicator shall be appointed to settle the dispute and has to come up with a decision within 10 business days since the acceptance of the adjudication application.

Who acts as the adjudicator?

According to Section 22 of the Building and Construction Industry Security of Payment Act 1999 of NSW, there are two criteria on who should be appointed as adjudicator:

    a. if the person is a natural person, and

    b. if the person has such qualifications, expertise and experience as may be prescribed by          the regulations for the purposes of this section.

According to Section 19 of NSW’s Building and Construction Industry Security of Payment Act 1999, if an Authorised Nominating Authority refers an adjudication application to an adjudicator, the adjudicator may accept the adjudication application by giving out a notice to the applicant (usually the contractor or the claimant of the payment) and to the respondent (the client).

Moreover, the acceptance of the adjudication application is an indication of becoming the appointed adjudicator to settle the building dispute.

What is an Authorised Nominating Authority?

An Authorised Nominating Authority is an appointed authority of the Minister (under Section 28 of the Building and Construction Industry Security of Payment Act 1999) who shall decide who the adjudicator will be to settle the building dispute.

Adjudicator

An adjudicator shall reach to a decision within 10 business days once he/she accepts the adjudication application. 

However, the adjudicator is also allowed to come up with a final decision on a particular date agreed upon by both the claimant and the respondent.The adjudicator is entitled to conduct inspections that are related to payment claim matters. Inspections may include:

  • Site visits
  • Inspection of related goods and services
  • Inspection of important documents, plans, reports, etc.

The adjudicator is allowed in his/her discretion to decide to conduct a conference or inspection before coming up with a final decision.

What could be possible reasons for an adjudicator to meet with either party?

  • For further supporting documents or materials
  • For further clarification of submissions
  • To draw out comments from either party
  • To see if an inspection is necessary
  • To decide if further submissions are needed

Determining an adjudication application

In accordance to the Building and Construction Industry Security of Payment Act 1999, the adjudicator shall only consider the following matters:

  • The provisions of the Act
  • The provisions of the construction contract from which the application arose.
  • The payment claim along with all other submissions that the claimant appropriately
    made in support of the claim.
  • The payment schedule along with all other submissions that the respondent appropriately
    made in support of the schedule.
  • Results of any inspection executed by the adjudicator related to payment claim matters.

Adjudication determination

The adjudicator shall determine:

  • The amount of the payment that the respondent must give to the claimant (also known as the adjudicated amount)
  • The date on which the amount becomes (or became) payable.
  • The rate of interest payable on such amount.

NOTE:

  • The adjudicator CANNOT determine an amount that a claimant must pay to the respondent.
  • The adjudicator CANNOT determine an amount greater than claimed amount.
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What Contracts Specialist can do for you

Contracts Specialist is a Sydney-based building and construction law firm that can assist you with Security of Payment and debt recovery, building disputes, construction contracts, and more. Our specialist building and construction lawyers are experienced in dealing with construction law matters and can clearly explain to you how to enforce a judgment and all the procedures you will have to go through to find the resolution of your legal issue.

 

We have over 10 years of experience dealing with construction law. You can be confident that you will be in good hands and that you will be getting the right advice.