The first article in this series looked at making a payment claim and providing a payment schedule in accordance with the Building Industry and Fairness Act (Security Payment) Act 2017 (BIFA). If you find yourself in a situation where you have not been paid monies owed to you, then you may be able to apply for an adjudication to recover the amount.
An adjudication is a step available for contractors who have only received part or no payments of a payment claim.
Timing to submit an application
Timing of when you can submit your application for adjudication will depend on your situation.
If you have not received a payment schedule and you have not been paid, then you must submit your application for adjudication within 30 business days after the later of the following:
- the day of the due date for the progress payment to which the claim relates;
- the last day the respondent could have given the payment schedule.
If you do not agree with the amount in the payment schedule then you must submit your claim within 30 business days after you receive the payment schedule.
If you have received a payment schedule but have not been paid the full amount stated in the payment schedule, you must submit your application within 20 business days after the due date for the payment.
What needs to be included in your application
In your application you should try to include:
(a) a copy of the contract;
(b) submissions that relate to the work that was completed and the nature of the work;
(c) submissions in relation to your legislative entitlements that support your claim;
(d) invoices, expert reports e.g., time and cost reports, statutory declarations or other materials and documents that support your claim.
Note your application cannot raise new issues outside those contained in your payment claim.
Once an adjudicator has accepted the application then the respondent may provide a response to the application. Timing to provide an adjudication response will depend on whether the claim is a standard payment claim or a complex payment claim.
Standard payment claim
A standard payment claim is a claim amount that is no more than $750,000. For a standard claim, an adjudication response must be provided within the later of the following:
(i) 10 business days after receiving the adjudication application;
(ii) 7 business days after receiving a notice of the adjudicator’s acceptance of the application.
Complex payment claim
Complex payment claims are claim amounts that are more than $750,000. For a complex claim an adjudication response must be provided within the later of the following:
(iii) 15 business days after receiving a copy of the application;
(iv) 12 business days after receiving notice of the adjudicator’s acceptance of the application.
For complex claims, the respondent may however apply for an extension of time of up to 15 business days to respond to the adjudication.
An adjudication response must be in writing, identify the adjudication application and may include submissions. The response however may not include any new reasons for withholding payment that were not included in the payment schedule.
If the adjudicator decides that the respondent is required to pay monies owed, then they must pay the amount within 5 business days after the day the adjudicator gives a copy of the decision to them, or a later date decided by the adjudicator. Once the other party has paid the amount, they must then notify the registrar within 5 business days after making the payment and provide the registrar with evidence of the payment.
It is important to note that an adjudication is an interim-binding decision meaning even through the amount decided in the adjudication must be paid, it does not limit the parties from commencing proceedings to recover an amount.
The LPC team has extensive knowledge and experience with the BIFA and can provide you with the support and advise you throughout the adjudication process.
If you would like to discuss any matters raised in this article as it relates to your specific circumstances, please contact Lamont Project & Construction Lawyers.
The content of this article is for information purposes only; it does not discuss every important topic or matter of law, and it is not to be relied upon as legal advice. Specialist advice should be sought regarding your specific circumstances.
Contact: Peter Lamont or Vanessa George
Phone: (07) 3248 8500
Address: Suite 1, Level 1, 349 Coronation Drive, Milton Qld 4064
Postal Address: PO Box 1133, Milton Qld 4064