Adjudication - Claimant & Respondent Services

Because Croesus engages consultants who are fully certified Adjudicators - where there is no conflict of interest with the parties involved - Croesus can provide expert assistance to either Claimants or Respondents in preparing the necessary documentation that is required of them by the relevant SOPA, if they are to effectively participate in the adjudication process.

Claimant Services

Who is a Claimant?

A Claimant is a person who has carried out construction work (or has supplied related goods and services) and is or claims to be entitled to a payment under a construction contract. Any sub-contractor who renders an invoice (progress claim) for payment is a Claimant.

As the SOPA provides for different timeframes and notifications depending upon the actions of the Respondent, particular care needs to be taken by the Claimant to follow the correct legal wording and procedures.

Drafting Payment Claims

To make a claim under a SOPA, the Claimant first serves a payment claim on the party liable to pay for construction work or related goods or services (the Respondent).

The Claimant can only make a payment claim in respect of work done (or goods and services supplied) up to a particular reference date, which is determined by either the contract or the applicable SOPA.

Please refer to the Adjudicate Today website (www.adjudicate.com.au) for a definitive list of permitted components of a payment claim.

Drafting Warning of Intention to Seek Adjudication

If a written response to the payment claim (the SOPA calls this a "payment schedule") is not received within a specified number of business days, the SOPA requires the Claimant to provide the Respondent with a second opportunity to respond.

The specified number of days varies between legal jurisdictions, as do the required wording and related procedures.

Drafting Adjudication Application

A copy of the Claimant's adjudication application and all attachments or other things accompanying it must be served on an ANA (e.g. Adjudicate Today) and the Respondent at the same time. Upon receipt of the application, Adjudicate Today nominates an appropriate Adjudicator from their panel of registered Adjudicators to determine the matter.

Adjudicators cannot be pre-appointed under a construction contract and may only be appointed by an ANA to adjudicate on a payment claim. Within 4 business days of receipt of an application, Adjudicate Today will provide a formal Notification of Acceptance of the adjudication application on behalf of the appointed Adjudicator.

Enforcing an Adjudication Determination

Having received and read the Claimant's adjudication application and any related written responses received from the Respondent, the Adjudicator will proceed to make a Determination as to the amount that the Respondent is liable to pay in respect of the original payment claim.

The amount payable pursuant to the Determination becomes a statutory debt due to the Claimant from the Respondent. Should the Respondent fail to pay the amount in the Adjudicator's Determination, the Claimant can proceed to have a Court enforce payment of the debt by a clerical process (the matter does not have to go before a judge).

  1. The process for converting an adjudication Determination to a judgement of the Court and having it enforced is as follows:
  2. The Claimant applies to the ANA (Adjudicate Today) to issue an adjudication certificate, certifying the amount to be paid by the Respondent in the Determination.
  3. The Claimant takes the adjudication certificate to the appropriate Court and completes an affidavit form, which is available at the Court.
  4. With assistance of Court Registry staff, the adjudication certificate is registered as a judgment of the Court and a money Order against the Respondent is obtained.
  5. Select an option for enforcement of the money Order.
  6. Commence your chosen enforcement option at the appropriate Court, with the assistance of Court Registry staff.

Croesus' expert consultant Adjudicators can assist Claimants in the preparation of all documentation required by the foregoing processes, as well as guiding Claimants through the sometimes complicated procedures involved.

Respondent Services

Who is a Respondent?

A Respondent is a person who has contracted with a sub-contractor (the Claimant) for construction work (or the supply of related goods and services) and has received a payment claim from the Claimant, pursuant to the terms of a SOPA.

Drafting Payment Schedules

When a Claimant serves a payment claim upon a Respondent, the Respondent can act in several ways:

  1. The Respondent can pay the claim, in full; or
  2. The Respondent can do nothing; or
  3. The Respondent can reply to the claim with a payment schedule, which sets out what parts of the payment claim it will pay and what parts it will not pay, setting out the reasons for its refusals.

Action 1 settles the claim immediately and there is no further cause for action.

Action 2 allows the Claimant to take action under the applicable SOPA to either (i) make an adjudication application or (ii) have the payment claim declared to be a statutory debt, payable in full immediately irrespective of the possibility that the Respondent's true liability for payment is less than the total claimed.

Action 3 lays the foundation upon which the Claimant can make an adjudication application pursuant to the applicable SOPA to have an Adjudicator make a Determination as to the appropriate amount lawfully payable by the Respondent.

It is exceptionally important that, if the Respondent provides a payment schedule, it is complete in all detail and reasoning as no further issues related to the matters contained in the payment schedule can be raised by the Respondent at a later stage in the adjudication process.

Drafting an Adjudication Response

If the Respondent has supplied a payment schedule in reply to a payment claim, and the Claimant thereafter makes an adjudication application, the Respondent has a right to reply to the details contained within the adjudication application with its own Adjudication Response.

As stated above, the Adjudication Response cannot add any new details that should have been contained in the payment schedule. However, the Respondent can set out its own views in the Adjudication Response on other matters raised by the Claimant in the adjudication application.

Importantly, however, if the Respondent did not supply a payment schedule, it has no right to give an Adjudication Response and the Adjudicator will determine the application on the basis of the documentation before him/her (which is, largely, supplied by the Claimant).

Croesus' expert consultant Adjudicators can assist Respondents in the preparation of all documentation required by the foregoing processes, as well as guiding Respondents through the sometimes complicated procedures involved.