If you want to know how to draft and serve an adjudication response, then this article will provide you with useful information.
If you have been served with an adjudication application in Queensland, then you need to file and serve an adjudication response.
A respondent will need to do the following:
- Identify the eligibility to give an adjudication response;
- Immediately confirm the critical dates for submitting the response;
- Understand how and where to submit the adjudication response;
- Confirm if there are any jurisdictional issues which will need to be considered;
- Understand if the payment claim includes items not allowed to be claimed;
- Understand what is and is not allowed to be included in the adjudication response.
- Prepare detailed submissions and evidence to support the payment schedule; and
- Understand how to serve the adjudication response before time runs out.
If the respondent does not act within the required time, then the adjudicator may decide in favour of the claimant.
The claimant may then register the adjudication certificate and enforce the decision as if it were a judgment of the Court.
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It is vital that you act quickly to draft and serve an adjudication response. To ensure that you give yourself the best chance, you should contact a lawyer immediately
OR CALL: 1300 545 133 FOR A PHONE CONSULTATION
Eligibility to give an Adjudication Response
A condition precedent for eligibility to respond to an adjudication application if the giving of a payment schedule after being given a payment claim.
Section 82(2) of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (“BIFA”) says:
… The respondent must not give an adjudication response if the respondent failed to give the claimant a payment schedule as required under section 76.
If a respondent did not give a payment schedule in answer to the payment claim, then a respondent will not be entitled to give an adjudication response.
What is an Adjudication Response?
Section 82(1) of BIFA says:
After being given notice of an adjudicator’s acceptance of an adjudication application under section 81, the respondent may give the adjudicator a response to the adjudication application (the “adjudication response”).
So, an adjudication response is a response to the adjudication application.
There are a number of things to consider when drafting and serving an adjudication response, namely:
- Identify the critical dates; and
- Know how to give the adjudication response;
- Consider what can be included in the response and what cannot;
- Consider any jurisdictional issues;
- Prepare submissions;
- Collate all of the evidence required; and
- Submit and serve the adjudication response in the correct time.
These issues will be explained in more detail below.
Identify the Critical Dates
There are strict timeframes in which to file an adjudication response.
The adjudication response must be given to the adjudicator the later of 10 business days after receiving the application; or 7 business days after receiving the adjudicators acceptance.
For a complex claim, 15 business days or 12 business days respectively.
Section 83 of BIFA says:
(1) If responding to a standard payment claim, the respondent must give the adjudicator the adjudication response within the later of the following periods to end—
(a) 10 business days after receiving a copy of the adjudication application;
(b) 7 business days after receiving notice of the adjudicator’s acceptance of the adjudication application.
(2) If responding to a complex payment claim, the respondent must give the adjudicator the adjudication response within the later of the following to end—
(a) 15 business days after receiving a copy of the adjudication application;
(b) 12 business days after receiving notice of the adjudicator’s acceptance of the adjudication application.
What does it mean to “Receive” the Documents?
The time starts running from the date of “receiving” the above documents. But what does “receiving” mean in this context?
In CMF Projects Pty Ltd v Masic Pty Ltd & Ors [2014] QSC 209 Daubney J said at [25]:
… there is a distinction in BCIPA (now BIFA) between the notions of “service” and “receipt” of documents. The word “receive” … has been considered on numerous occasions … That subsection relevantly provides that an adjudication application must be made “within 10 business days after the claimant receives the payment schedule”. It seems now to be clear enough on the authorities that the word “receive” connotes that, whilst the document in question need not come to the attention of a particular person within the relevant office, it nevertheless does actually need to have arrived at, and thereby been received’, at the recipient’s registered office, or place of business, and be there during normal office hours.
So, the time for the adjudication response starts running from the time that the above documents arrived at the recipient’s registered office, or place of business, and be there during normal office hours.
Care should be taken when assessing the time the document was delivered and the time it was received.
For example, it could have been delivered yesterday afternoon, but only retrieved from the post box today.
The Form of the Adjudication Response
Section 82(3) of BIFA says:
The adjudication response—
(a) must be in writing; and
(b) must identify the adjudication application to which it relates; and
(c) may include the submissions relevant to the response the respondent chooses to include.
However, the respondent is restricted to only include reasons that were included in the payment schedule.
Failure to articulate reasons in the schedule may mean that the respondent will be unable to include them in the adjudication response.
Section 82(4) of BIFA says:
However, the adjudication response must not include any reasons (“new reasons”) for withholding payment that were not included in the payment schedule when given to the claimant.
What are “new reasons”?
In John Holland Pty Ltd v Walz Marine Services Pty Ltd & Ors [2011] QSC 39 Margaret Wilson J said at [27]:
… the issues to be decided by the adjudicator are defined in the payment claim and the payment schedule. The respondent must state its reasons for wholly or partially withholding payment in the payment schedule. While the parties may make submissions in support of their respective positions in the adjudication application and the adjudication response respectively, the respondent cannot use the adjudication response as a vehicle to advance reasons for withholding payment which it failed to include in its payment schedule.
There are a number of cases on this point and it has been enforced reasonably strictly to prevent unfairness.
In Wiggins Island Coal Export Terminal Pty Ltd v Monadelphous Engineering Pty Ltd & Ors [2015] QSC 307 Philip McMurdo J said at [55]:
The evident intent of [the section] is to prevent the unfairness to a claimant which could follow from a respondent being allowed to contest its alleged liability for a reason which it had not advanced ahead of the adjudication application.
However, an adjudication response can do more than simply mirror the payment schedule.
In Tqm v Dasein [2004] NSWSC 1216 McDougall J said at [30]:
… it would be open to a respondent to argue, either in greater detail or with perhaps more supporting evidence, reasons that had been advanced. If it were intended that an adjudication response should do no more than mirror, word for word, a payment schedule, then there is little point to the ability … for a respondent to lodge an adjudication response.
So, an adjudication cannot raise new issues, but can elaborate, provide greater detail, and provide supporting evidence to support the reasons contained in the payment schedule.
What can be Included in the Response
The adjudication response can include the following (amongst others):
- An expert report supporting the respondent’s payment schedule;
- Particulars and evidence (statutory declarations) in support of the submissions;
- Particulars and evidence in relation to why the payment (or part of the payment) was withheld, (including offsetting claims);
- Particulars and evidence identifying any non-contractual matters raised in the payment claim that should not be taken into account by the adjudicator; and
- Particulars and evidence bringing attention to any jurisdictional issues.
An adjudication response can include information in relation to jurisdictional issues not contained in the payment schedule.
Jurisdictional Issues for Adjudication Response
The adjudication response can ask the adjudicator to consider the statutory requirements of BIFA, the payment claim and the adjudication application, namely:
- Identify the reference date to which the payment claim applies;
- Identify if the claim relates to an applicable construction contract;
- Identify if the payment claim is valid;
- Correct identification of the construction work and/or related goods or services; and
- Have all of the time limits been correctly complied with.
If any of the above can be answered in the negative, then the adjudicator may not have jurisdiction to decide the claim.
Once all of the arguments and any jurisdictional issues have been identified; the respondent has prepared their Adjudication Response Submissions and collated all of their evidence, it is time to submit the adjudication response.
How to give the Adjudication Response
An adjudication response in Queensland must be submitted to the adjudicator within the timeframe above, and a copy of the response given to the claimant within two (2) business days.
The adjudicator is appointed by the Registrar and will have provided a copy of the adjudicator’s acceptance of the adjudication application, including contact details.
Once the adjudication response is given to the adjudicator, the response must be given to the claimant within two (2) business days.
Section 83(6) of BIFA says:
If the respondent gives the adjudicator an adjudication response under this section, the respondent must give a copy of the response to the claimant not more than 2 business days after giving the response to the adjudicator.
Service of the Adjudication Response
Section 102(1) of BIFA says:
A notice or other document that, under this chapter, is authorised or required to be given to a person may be given to the person in the way, if any, provided under the relevant construction contract.
Service is not limited to provisions of the construction contract however, section 39(1) of the Acts Interpretation Act 1954 (CTH) also applies to service of an adjudication response, which says:
If an Act requires or permits a document to be served on a person, the document may be served—
(a) on an individual—
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by post, telex, facsimile or similar facility to, the address of the place of residence or business of the person last known to the person serving the document; or
(b) on a body corporate – by leaving it at, or sending it by post, telex, facsimile or similar facility to, the head office, a registered office or a principal office of the body corporate.
The expression “similar facility” has been held to mean email. In Penfold Projects Pty Ltd v Securcorp Limited [2011] QDC 77 Irwin DCJ said at [232]:
In my view in context, “or similar facility” is wide enough to extend to email. As such I consider s 103(2) of the BCIPA envisages email service of notices
So, the same principles would apply as in CMF Projects Pty Ltd v Masic Pty Ltd & Ors [2014] QSC 209 in that the adjudication response should be given to the claimant at the claimants registered office, or place of business, or place of residence, and be there during normal office hours.
A Respondent might also consider personal service and facsimile or email too, if the files are not too large.
Once served, the adjudicator can do a number of things.
Adjudication Procedures
Once the adjudication response is given to the adjudicator and served on the claimant, the adjudication can do a number of things, namely:
- Ask for further written submissions;
- Call for a conference between the parties; and
- Carry out an inspection of any matter to which the claim relates.
If the adjudicator does not do any of the above, or request an extension of time, then they will need to decide.
The Adjudication Decision
The adjudicator must decide:
- Whether they have jurisdiction and whether the application is frivolous or vexatious;
- 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;
- The rate of interest payable on any amount; and
- The fee and the percentage that each party is required to pay.
Further, the adjudicator’s decision must:
- Be in writing; and
- Include the reasons for the decision.
The adjudicator must decide the above within a strict timeframe.
Time Limits for Making the Adjudication Decision
The adjudicator must decide the adjudication in either 10 business days, or 15 business days for a complex claim.
Section 85(1) of BIFA says:
(1) Subject to section 86, an adjudicator must decide an adjudication application no later than—
(a) for a standard payment claim—10 business days after the response date; or
(b) for a complex payment claim—15 business days after the response date.
The “response date” is the day on which the adjudicator receives the response; or (if no response is given) the last day on which the respondent could give the adjudicator an adjudication response.
Section 86 of BIFA says that the adjudicator can request an extension of time for deciding adjudication application.
However, the claimant and the respondent must agree in writing.
Upon payment of fees, the adjudicator will provide a copy of the decision and reasons to the Registrar, the claimant and the respondent.
What Happens Next?
If everything goes right, then the adjudicator will decide that the amount payable is the amount contained in the payment schedule.
A good building and construction debt recovery lawyer will give you the best chance to defend an adjudication application and defeat an unfair payment claim.
Further Reading
It is vital that you act quickly to draft and serve an adjudication response. To ensure that you give yourself the best chance, you should contact a lawyer immediately
OR CALL: 1300 545 133 FOR A PHONE CONSULTATION
Frequently Asked Questions (FAQs) about Adjudication Responses
Navigating the world of construction disputes and the adjudication process can be complex and overwhelming. Whether you’re a claimant seeking resolution or a respondent preparing a response, understanding the ins and outs of adjudication is essential for protecting your interests.
In this FAQ section, we provide clear answers to common questions about adjudication responses in Queensland. From the basics of the process to the role of adjudicators and the importance of legal assistance, we aim to provide you with valuable insights to help you navigate this intricate landscape effectively.
What is an adjudication response?
An adjudication response, also known as an adjudication reply, is a written reply submitted by a respondent in response to an adjudication application. It presents arguments, evidence, and submissions related to the payment claim made by the claimant in a construction dispute.
What is the adjudication process in Queensland?
The adjudication process in Queensland involves several steps:
- A claimant serves an adjudication application.
- The respondent drafts and serves an adjudication response.
- The adjudicator reviews both the application and response, potentially requesting further information.
- The adjudicator makes a decision on the dispute, including the amount payable, interest, and fees.
How can adjudication lawyers assist in the process?
Adjudication lawyers, legal professionals with expertise in construction disputes, can guide you through drafting a strong adjudication response, ensuring compliance with legal requirements, identifying jurisdictional issues, and presenting compelling arguments and evidence to protect your interests.
What is an adjudication application?
An adjudication application is a formal request made by a claimant in a construction dispute seeking a resolution regarding a payment claim. It initiates the adjudication process.
What does “adjudicator” mean?
An adjudicator is a qualified individual appointed to review adjudication applications and responses. They make informed decisions based on the presented evidence, arguments, and applicable laws.
What does “adjudication date” mean?
The “adjudication date” refers to the deadline by which an adjudicator must make a decision on the adjudication application. It’s a crucial timeframe within which the adjudicator must evaluate the arguments and evidence and provide a decision.
How can I draft a strong adjudication response?
To draft a strong adjudication response, follow these steps:
- Identify critical dates for response submission.
- Understand the content and limitations of the response.
- Present arguments that were included in your payment schedule.
- Provide detailed evidence, expert reports, and statutory declarations to support your position.
- Address jurisdictional issues if applicable.
- Comply with service requirements, delivering the response to the adjudicator and claimant within specified timeframes.
What happens if I fail to submit an adjudication response?
If you do not submit an adjudication response within the required timeframe, the adjudicator may decide in favor of the claimant based solely on their application. This could result in an unfavourable decision against you.
Can I include new reasons in my adjudication response that were not in my payment schedule?
No, you cannot include “new reasons” for withholding payment that were not included in your original payment schedule. Your adjudication response should elaborate, provide more detail, and offer supporting evidence for the reasons stated in the schedule.
How can I serve my adjudication response?
You can serve your adjudication response through methods such as personal delivery, registered post, email, or other agreed-upon means. Ensure that the response is given to the adjudicator within the specified timeframe and a copy is provided to the claimant within two business days.
What if the adjudicator requests further information or a conference?
If the adjudicator needs more information or believes a conference would be helpful, you should cooperate and provide the requested information promptly. This helps ensure that the adjudicator has a comprehensive understanding of the dispute.
What does the adjudicator consider when making a decision?
The adjudicator considers various factors, including:
- Jurisdictional matters: Validity of the claim, reference date, compliance with time limits, etc.
- Arguments and evidence presented in both the application and response.
- Statutory requirements under the Building Industry Fairness (Security of Payment) Act 2017 (Qld).
- Legal principles and relevant case law.
Can I challenge the adjudicator’s decision?
If you believe the adjudicator’s decision is incorrect or unjust, you may have options for challenging it. Seeking legal advice is recommended to understand the feasibility and process for challenging the decision.
How can Stonegate Legal help me with my adjudication response?
Stonegate Legal’s adjudication lawyers have extensive experience in handling construction disputes and adjudication processes. They can assist you in drafting a strong response, navigating legal complexities, and increasing your chances of a favourable outcome.
What’s the significance of acting quickly in this process?
Acting promptly is crucial because strict timeframes apply throughout the adjudication process. Failing to adhere to deadlines could result in unfavourable decisions. Contacting an adjudication lawyer promptly can help you understand the timeline and take appropriate actions.
