Following on from my earlier articles concerning Queensland’s Building Industry Fairness (Security of Payment) Act, the adjudication process is open to a contractor where an amount owed under a payment claim is not paid by the due date, or a payment schedule has the payment amount less than the amount in the payment claim.
Since adjudication is a fast-track process to enable contractors and subcontractors to recover monies owing pursuant to a progress claim to maintain steady cashflow, it is the preferred recovery option available to contractors and subcontractors.
While it is intended to assist people in the building industry, the adjudication process is highly technical, if it is not made within the required time, or served correctly, the adjudicator will not have jurisdiction to determine the claim and it will fail, most likely with an obligation for the claiming party to pay costs. It has to be filed with submissions properly made and include supporting documents and evidence substantiating the amount in the payment claim.
As a registered adjudicator and having decided numerous adjudication applications under the Act, I have found it often to be the case that adjudication applications are poorly put together, lacking the evidence required to establish the amount claimed in a payment claim and that the applications often do not comply with the strict requirements under the Act.
An adjudication application made that lacks evidence or is not compliant with the essential requirements of the Act will not succeed, or may succeed with an adjudicator but the decision may be set aside by the Supreme Court, usually because the adjudicator had no jurisdiction where a requirement of the Act was not met, and the costs to the unsuccessful claimant can be quite enormous if that occurs.
Parties to payment claim disputes would usually benefit by the assistance of someone who acts in these matters and understands the requirements and processes, the kind of evidence that is necessary and the critical dates to meet. Because of the potential loss of rights, early advice is recommended.
In my next article I will discuss the adjudication process further.
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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