The adjudication process starts by the claimant (the contractor owed money) filing an Adjudication Application in the QBCC, together with its supporting material. This is done online.
Once it is filed, then the application and supporting material has to be served on the respondent (the person who owes the money) in accordance with the Act, and a registered adjudicator is appointed to determine the application.
Many adjudications fail because the adjudicator considers that they do not have jurisdiction to determine the dispute. If that happens, then the claimant will usually have to pay the adjudicator’s costs. Assuming though that the adjudicator has jurisdiction, then the adjudicator will decide what amount (if any) is payable, the due date for payment, and the interest rate that applies.
The respondent to the claim has the opportunity to file an adjudication response. In that response, the respondent provides materials and an explanation for why they say that no amount or a lesser amount is owing. That response also has to be given within a strict time period.
The adjudicator will often call for submissions from the parties and will determine the application taking into account those submissions and the supporting documents. This decision has to be made within a very strict and short timeframe, and generally, the adjudicator will require their fee to be paid before releasing their decision to the parties.
If the adjudicator has found that the respondent is liable to pay an amount (called the “Adjudicated Amount”), then it must be paid within the timeframe provided for by the Act and a judgment can be registered in a court and enforced. In some cases, a claimant can lodge a charge under the Act for the Adjudicated Amount over certain real property owned by the respondent. This charge is generally available to a person contracting with the land owner, but would not usually be available for a subcontractor against (say) a builder, because the builder does not own the project property.
This ability to lodge a charge on land is a very powerful tool to be used in the appropriate circumstances.
A decision of an adjudicator does not always finalise the dispute between the claiming contractor and the respondent. There are continuing rights available to both, including for the party disappointed by the decision to make further claims outside of the adjudication process as the adjudication process is intended to avoid payment disputes starving the claimant of money, but recognise that this process does not allow for the full articulation of all matters between the parties.
In my next post, I will discuss challenging an adjudicator’s decision.
Meet The Author!
Meet the author of this blog article, Justin Mathews. Over the next several weeks, we will post a series of articles relating to Queensland building and construction matters written by Justin.
Justin is a registered Adjudicator in Queensland under the Building Industry Fairness (Security of Payment) Act 2017 and also in the Northern Territory under its security of payment legislation, and an accredited specialist in commercial litigation.
He represents a number of Queensland building contractors and other parties in building and construction disputes both through the adjudication process and in the various state courts of Queensland, New South Wales, and Northern Territory, as well as advice in relation to contractual matters, and QBCC regulatory matters including matters involving the statutory warranty scheme.
In these articles Justin will discuss a number of matters of interest to members of the Queensland building and construction industry.
For enquiries concerning building matters, Justin can be contacted by email justinm@qbmlaw.com.au or Ph: (07) 5574 0111.
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