Adjudication claims and responses – getting them right!

Russell Ensbey, Special Counsel, Brisbane
 
Adjudications under BCIPA (Building and Construction Industry Payments Act) are meant to be quick and dirty interim decisions about money claims.  Whilst adjudications do not fix all of the issues regarding payment in the building industry, the ability under BCIPA to obtain a relatively quick decision about a money claim is generally regarded as being a good thing.

However, whether you are a claimant or a respondent, there are legal and evidentiary considerations that will apply, and if you get them wrong, they will affect your success of either pursuing, or opposing, a payment claim.  

There are a number of matters that are critical in adjudications, including:
  1. having a valid reference date from which to issue a payment claim;
  2. complying with the time limits under BCIPA in relation to an adjudication; and
  3. making sure the adjudication response covers all of the matters you want to raise if you are a respondent to a payment claim.
Even if all these things are addressed, your claim, or response, can fail if you do not put forward sufficient documentary proof in relation to your claim (or why your opponent’s claim should not be accepted).  Submissions are also very important so as to ensure the adjudicator understands the matters that you want to raise, and understands the relevance of the documents you put forward in the adjudication
.  

If you try to address these matters yourself, it may well be that you either get it wrong (from a legal perspective) or your evidence falls short and the adjudicator does not find in your favour.  If that occurs, the outcomes will not be good – if you are a claimant, you will not obtain an adjudication in your favour, and in all likelihood will be required to pay the adjudicator’s fees.  If you are a respondent, the adjudicator might find against you and you will be obliged to pay monies you dispute, and the adjudicator’s fees.

Take Home Lesson

Getting advice early before you issue a payment claim and go to adjudication, or providing your responses to a payment claim or an adjudication application, can make the difference between winning and losing.

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This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.