Security Payment S17: Division 2 Adjudication of disputes

Division 2 - Adjudication of disputes

17 Adjudication applications

(1) A claimant may apply for adjudication of a payment claim (an adjudication application ) if:

(a) the respondent provides a payment schedule under Division 1 but:

(i) the scheduled amount indicated in the payment schedule is less than the claimed amount indicated in the payment claim, or

(ii) the respondent fails to pay the whole or any part of the scheduled amount to the claimant by the due date for payment of the amount, or

(b) the respondent fails to provide a payment schedule to the claimant under Division 1 and fails to pay the whole or any part of the claimed amount by the due date for payment of the amount.

(2) An adjudication application to which subsection (1) (b) applies cannot be made unless:

(a) the claimant has notified the respondent, within the period of 20 business days immediately following the due date for payment, of the claimant's intention to apply for adjudication of the payment claim, and

(b) the respondent has been given an opportunity to provide a payment schedule to the claimant within 5 business days after receiving the claimant's notice.

(3) An adjudication application:

(a) must be in writing, and

(b) must be made to an authorised nominating authority chosen by the claimant, and

(c) in the case of an application under subsection (1) (a) (i)--must be made within 10 business days after the claimant receives the payment schedule, and

(d) in the case of an application under subsection (1) (a) (ii)--must be made within 20 business days after the due date for payment, and

(e) in the case of an application under subsection (1) (b)--must be made within 10 business days after the end of the 5-day period referred to in subsection (2) (b), and

(f) must identify the payment claim and the payment schedule (if any) to which it relates, and

(g) must be accompanied by such application fee (if any) as may be determined by the authorised nominating authority, and

(h) may contain such submissions relevant to the application as the claimant chooses to include.

(4) The amount of any such application fee must not exceed the amount (if any) determined by the Minister.

(5) A copy of an adjudication application must be served on the respondent concerned.

(6) It is the duty of the authorised nominating authority to which an adjudication application is made to refer the application to an adjudicator (being a person who is eligible to be an adjudicator as referred to in section 18) as soon as practicable.

The University of Sydney v Cadence Australia Pty Limited Anor [2009] NSWSC 635 (15 July 2009): Hammerschlag J
KEY ISSUES: where claimant seeks to re-agitate unsuccessful claim already adjudicated upon as part of a new wider claim ; held claimant's statutory entitlement was exhausted and re-use of the machinery of the Act in the circumstances was an abuse of process and should be restrained.

Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd trading as Novatec Construction Systems [2009] NSWSC 416 (5 May 2009): Rein J
KEY ISSUES: second payment claim for items the subject of a previous claim ; whether second claim is precluded by principles of estoppel and the provisions of the Act ; whether appropriate for the Court to intervene prior to an adjudication determination to prevent such a claim from proceeding; whether adjudication under Building and Construction Industry Security of Payment Act 1999 creates issue estoppel.

Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69 (15 April 2009): Allsop J, Macfarlan JA, Handley AJA
KEY ISSUES: where a payment claim already adjudicated may be adjudicated again, whether the claimant is entitled to make the same claim for a second time.

Plaza West Pty Ltd v Simon's Earthworks (NSW) Pty Ltd Anor [2008] NSWCA 279 (31 October 2008): Allsop P, Giles JA, Hodgson JA

KEY ISSUES: whether error of fact or law sufficient to vitiate adjudication ; whether adjudicator fulfilled statutory task ; whether denial of procedural fairness.

Falgat Constructions Pty Limited v Equity Australia Corporation Pty Limited [2006] NSWCA 259 (19 September 2006): Handley JA, Hodgson JA, Hunt AJA
KEY ISSUES: whether adjudication application can be made if payment schedule provided outside the time limit

Rojo Building Pty Limited v Jillcris Pty Limited [2006] NSWSC 309 (19 April 2006) Einstein J:
KEY ISSUES: failure of respondent to serve payment schedule within time delimited by s14 - applicant given election to proceed to obtain judgment or to proceed to adjudication ; whether having elected to proceed to adjudication, claimant has waived anterior right to obtain judgment.

Parist Holdings Pty Ltd v WT Partnership Australia Pty Ltd [2003] NSWSC 365 (5 May 2003): Nicholas J
KEY ISSUES: whether adjudicator acted ultra vires in adjudication and determination – whether adjudicator’s determination a nullity – whether payment claim is foundation of jurisdiction of adjudicator

Paynter Dixon Constructions Pty Limited v JF & CG Tilston Pty Limited and Anor [2003] NSWSC 869 (25 September 2003) : Bergin J
KEY ISSUES: whether adjudicator validly appointed – whether adjudicator has jurisdiction to determine a dispute in relation to a payment claim that included a contentious claim for damages or loss of profits for alleged wrongful repudiation of a contract

Emag Constructions Pty Limited v Highrise Concrete Contractors (Aust) Pty Limited [2003] NSWSC 903 (26 September 2003) : Einstein J
KEY ISSUES: whether the adjudicator had jurisdiction – whether proper service of the adjudication application took place when faxed to respondent’s solicitor

Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140 (4 December 2003) : Palmer J
KEY ISSUES: whether the determination of an adjudicator is open to judicial review – whether an adjudication may be reviewed for error law on the face of the record – what must be disclosed by a payment schedule – whether adjudicator must assess value by inspection - whether whole determination must be quashed

Consolidated Constructions Pty Ltd v Ettamogah Pub [2004] NSWSC 110 (11 March 2004): McDougall J
KEY ISSUES: whether s7(2)(a) applicable – whether plaintiff may serve a payment claim under s13 – whether progress payment has same meaning in Act as it does under the construction contract

Austruc v ACA; ACA v Sarlos & Anor [2004] NSWSC 131 (11 March 2004): McDougall J
KEY ISSUES: whether slip rule applicable – whether contract formed part of loan agreement – whether adjudicator permitted to consider statutory declaration attached to adjudication application – whether adjudicator required to give notice of intention to rely upon statutory declaration – whether adjudicator required to give respondent opportunity to respond to statutory declaration

John Holland Pty Limited v Cardno MBK (NSW) Pty Limited & Ors [2004] NSWSC 258 (20 April 2004) : Einstein J
KEY ISSUES: whether adjudication application should be relevantly tied to the payment claim [such that the adjudication application cannot include reasons supporting the payment claim unless those reasons had been included in the payment claim

Isis Projects v Clarence Street [2004] NSWSC 714 (13 August 2004) : McDougall J
KEY ISSUES: whether plaintiff entitled to recover amounts unpaid as a debt – whether progress claims identified work by single line item references – whether progress claims supported by sufficient evidence

Minister for Commerce v Contrax Plumbing & Ors [2004] NSWSC 823 (13 September 2004) : McDougall J
KEY ISSUES: whether adjudication determination should be quashed – whether adjudicator erred in law in his construction of s34 of the Act – whether adjudicator failed to determine defendant’s entitlement in accordance with the terms of the contract – whether adjudicator erred in reaching his determination on a basis not advanced by defendant in its payment claim and therefore not considered by plaintiff in its payment schedule – whether adjudicator committed jurisdictional error by determining the adjudication application on basis of arguments advanced by defendant for first time in that application – whether adjudicator committed jurisdictional error by not considering the plaintiff’s response to matters advanced by defendant for the first time in its adjudication application – whether relief should be withheld on discretionary grounds

Brodyn Pty. Ltd. t/as Time Cost and Quality v. Davenport & Anor. [2004] NSWCA 394 (3 November 2004): Mason P, Giles JA, Hodgson JA
KEY ISSUES: whether certiorari available – whether other relief available in respect of judgment, including stay of execution

Coordinated Construction Co v J M Hargreaves & Ors [2005] NSWSC 77 (22 February 2005): McDougall J
KEY ISSUES: whether determination void because adjudicated amount included amounts assumed (but not decided) not to be “for” construction work – whether determination in breach of the Act is unlawful – whether payment claim served on or from reference date

Vince Schokman & Anor v Xception Construction Pty Limited and Anor [2005] NSWSC 297 (4 April 2005): Einstein J
KEY ISSUES: whether s17(2) notice of intent to apply for adjudication served out of time – whether adjudication application made out of time – whether claimant can revert to seeking judgment in curial proceedings when adjudication procedures miscarry

Taylor Projects Group Pty Limited v Brick Dept Pty Limited & Ors [2005] NSWSC 439 (5 May 2005): Einstein J
KEY ISSUES: whether the payment claim by way of a facsimile sent at 10:41pm was served on the day it was faxed – whether there was constructive resubmission of payment claim – whether adjudication determination failed to satisfy one of the essential conditions laid down by the Act

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