20
Adjudication responses
(1) Subject to
subsection (2A), the respondent may lodge with the adjudicator a response to the
claimant's adjudication application (the adjudication response ) at any
time within:
(a) 5 business
days after receiving a copy of the application, or
(b) 2 business
days after receiving notice of an adjudicator's acceptance of the application,
whichever
time expires later.
(2) The
adjudication response:
(a) must be in
writing, and
(b) must identify
the adjudication application to which it relates, and
(c) may contain
such submissions relevant to the response as the respondent chooses to include.
(2A) The
respondent may lodge an adjudication response only if the respondent has
provided a payment schedule to the claimant within the time specified in section
14 (4) or 17 (2) (b).
(2B) The
respondent cannot include in the adjudication response any reasons for
withholding payment unless those reasons have already been included in the
payment schedule provided to the claimant.
(3) A
copy of the adjudication response must be served on the claimant.
J
&Q Investments Pty Ltd v ZS Constructions (NSW) Pty Ltd [2008] NSWSC 838
(30 July 2008):
KEY ISSUES:whether
adjudicator denied party natural justice by failing to consider portions of
adjudication response whether failure to exercise powers in good faith
whether adequate reasons given for valuation of claim.
Firedam
Civil Engineering v KJP Construction [2007] NSWSC 1162 (25 October 2007):
Austin J
KEY ISSUES:
adjudicator disregards adjudication response on ground that payment schedule
was not provided because not received by claimant's director whether errors
of law whether denial of natural justice - whether relief should be by
declarations and injunctions or orders in nature of certiorari.
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
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
Brambles Australia Limited v Philip Davenport &Ors [2004]
NSWSC 120 (12 March 2004) : Einstein J
KEY ISSUES: whether, and if so to what extent, judicial review of adjudications is available – whether the consideration payable for construction work carried out under the contract or for related goods and services supplied under the contract was to be calculated by reference to the value of the work carried out or the value of the goods and services supplied
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
Kembla Coal &Coke v Select Civil &Ors [2004] NSWSC 628
(23 July 2004): McDougall J
KEY ISSUES: whether adjudication determination should be quashed – whether adjudicator in jurisdictional error by determining amount due where no reference date to which payment claim related – whether existence of reference date a jurisdictional fact – whether adjudicator erred in law by determining application on basis that amendments to Act applied – whether defects liability period commenced on or from date of practical completion – whether adjudicator erred in law by allowing in determination amount for delay costs and delay damages – whether adjudicator erred in law by allowing in determination amount for compound interest – whether relief should be withheld on discretionary grounds when points not taken before adjudicator
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
TQM v Dasein [2004] NSWSC 1216 (3 December 2004): McDougall
J
KEY ISSUES: whether adjudication determination void – whether plaintiff denied natural justice in adjudicator taking into account material withheld from plaintiff – whether relief should be denied as matter of discretion when adjudicator considers payment schedule – whether adjudicator thereby taken to have considered whole of party’s case
Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232 (9
December 2004): McDougall J
KEY ISSUES: whether letter in law sufficient to be payment schedule – whether “nothing” an amount for purposes of s14(2)(b) – whether letter “provided” within meaning of s14(1)
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
Pacific General Securities Ltd &Anor v Soliman &Sons Pty
Ltd &Ors [2005] NSWSC 378 (14 April 2005): McDougall J
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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