Under the Act, a claimant may apply for adjudication of a dispute. The process is subject to a number of conditions and timings which are outlined in the proceeding sections.

A claimant may submit an application for adjudication to an Authorised Nominating Authority ( RICS DRS) under one of three conditions:

• The respondent has served a payment schedule and the payment schedule states an amount owing that is less than the claimed amount stated in the payment claim. (Application under section 21(1)(a)(i))
• The respondent has failed to pay the whole or any part of the scheduled amount to the claimant by the due date for payment of the amount. (Application under section 21(1)(a)(ii))
• The respondent has failed to serve a payment schedule on the claimant and failed to pay the whole or any part of the claimed amount by the due date for payment. (Application under section 21(1)(b)).

An application under section 21(1)(b) of the Act is subject to a further condition. The claimant must give the respondent notice, within twenty business days immediately following the due date for payment of claimant's intention to appply for adjudication of the payment claim. The notice must state that the respondent may serve a payment schedule on the claimant within five (5) business days after receiving this notice. Download an example >> Notice of Intent to Apply for Adjudication

Other conditions include:

• The application must be in writing
• Must be made to an Authorised Nominating Authority chosen by the claimant (such as the RICS DRS)
• Must identify the payment claim and the payment schedule (if any) to which it relates.
• Must be accompanied by the relevant fee (if any is required). Refer to >> RICS DRS Adjudication Fees.
• May contain submissions relevant to the application the claimant chooses to include
• A copy of the adjudication application must be served on the respondent

Click on the following link to access our >> Adjudication Application Form. This form contains all the necessary information for applying for adjudication.

• For an application under condition 21(1)(a)(i) - ten (10) business days after the claimant receives the payment schedule
• For an application under condition 21(1)(a)(ii) - twenty (20) business days after the due date for payment
• For an application under condition 21(1)(b) - ten (10) business days after the end of the 5 day period referred in section 21(2)(b)

Both the adjudication application and adjudication response (see below) allow the claimant and respondent to submit relevant submissions. It is up to the parties as to what they submit. An adjudicator may ask for further written submissions from either party, but this is at their own discretion (see section 25(4) of the Act).

The following lists some typical examples of extra submissions a claimant or respondent may choose to submit during application or response:

• A copy of the contract, or the terms of the contract (if verbal), to which the application relates
• Copies of relevant correspondence between the parties
• Statuatory declarations (>> Download example statuatory declaration)
• Proof of service of relevant documents (eg. delivery dockets). This information is vital to the adjudication process and should not be overlooked
• Affidavits
• Invoices
• Photographs relevant to the issues in dispute
• Independent expert reports
• Test results

Once the ANA receives an adjudication application, they are required to refer the application to a relevant adjudicator as soon as practicable. The RICS DRS makes an effort to select an adjudicator most relevant to the dispute (it should be noted that a claimant/respondent cannot seek to state a preference for any one adjudicator).

Once the adjudicator has accepted (and therefore is, appointed) the adjudication, the RICS DRS confirms the adjudicator's acceptance to all parties (via a Notice of Acceptance), plus any other relevant terms of adjudication.

A respondent may give what is known as an Adjudication Response, in response to the claimant's adjudication application. The response may be within the later of (a) Five (5) business days after receiving a copy of the application (b) Two (2) business days after receiving notice of an adjudicator's acceptance of the application.

The following conditions are applicable:

• The adjudication response must be in writing
• The adjudication response must identify the adjudication application to which relates
• The adjudication response may contain submissions (see >> Adjudication Submissions).
• A copy of the response must be served on the claimant

The key item of note for the respondent is section 24(3) of the Act. This says that the respondent may give the adjudication response to an adjudicator only if the respondent has served a payment schedule on the claimant within the time period specified in section 18(4)(b) - Payment Schedules - or the extra time allowed under the Notice of Intent to apply for adjudication as per section 21(2)(b) - Adjudication Application - of the Act (refer to >> Potential Pitfalls for the Respondent).

The response can only include reasons for witholding payment which have been included in the payment schedule. The adjudicator is not allowed to consider reasons which have not been included on the payment schedule.

Click on the following link to access our >> Adjudication Response Pro-forma document. This form is an example form for an adjudication response.

Once the time period for submission of the adjudication response has elapsed, the adjudicator is permitted to begin the adjudication process. The adjudicator must decide the adjudication application within 10 business days after the earlier of the (i) the date on which the adjudicator receives the adjudication response or (ii) the date on which the adjudicator should have received the adjudication response, or within further time the claimant and the respondent may agree.

During the adjudication period, the adjudicator may choose to do the following:

• May ask for further written submissions from either party. The other party must have the opportunity to comment on the submissions. The adjudicator may also set deadlines for these further submissions and comments on these further submissions
• May call a conference with the parties. These are to be informal, and the parties are not entitled to any legal representation.
• May carry out an inspection of any matter to which the claim relates

Section 25 of the Act deals in detail with the adjudication procedures.

In accordance with section 26 of the Act, the adjudicator is required to decide:

• The amount of the progress payment (the adjudicated amount)
• The due date for payment
• The applicable rate of interest (Link to some useful information about commonly quoted interest rates)

In deciding a matter for adjudication as per section 26(2) of the Act, the adjudicator can only consider the following matters:

• The provisions of the Act, and to the extent they are relevant, the provisions of the Queensland Building Services Authority Act 1991, part 4A (Building contracts other than domestic building contracts) >> Link to QBSA Act.
• The provisions of the construction contract from which the application arose
• The payment claim to which the application relates (including all submissions, relevant documentations that have been properly made in support of the claim).
• The payment schedule - if any - to which the application relates together with all submissions, including relevant documentation, that have been properly made in support of the schedule.
• The results of any inspection carried out by the adjudicator on any matter to which the claim relates

Furthermore, the adjudicators decision must be in writing, and must include reasons for the decision (unless the claimant and respondent have both requested the adjudicator to not include reasons).

If in the case, that an adjudicator decides that a respondent is required to pay an adjudicated amount, the respondent must pay this amount to the claimant on or before the following dates:

• The date that is five (5) business days after the date on which the adjudcator's decision is served on the respondent; or
• A later date, as per the adjudicator's decision

The Act allows for two methods of enforcement. These include asking the Authorised Nominating Authority for a Adjudication Certificate (see the next section) and/or supsending future work or the supply of related goods and services (refer to >> Suspending Work).

In a case where a respondent fails to pay the whole or any part of an adjudicated amount by the due date for payment of that amount, the claimant may request what is known as an Adjudication Certificate. The certificate is a document which states the adjudicators decision, and may be filed in a court of competant jurisdiction as judgement for debt.

A claimant can lodge the certificate at either the Magistrates, District or Supreme Courts depending on the monetary size of the debt. The limits as of July 2004 are as follows:

• Magistrates Court - not exceeding $50,000
• District Court - not exceeding $250,000
• Supreme Court - in excess of $250,000

Once the adjudication certificate is registered as a judgement, it becomes an enforeable money order of that Court. Claimants should file the certificate in a court within the district they carry out business or reside. Claimant's should consult the >> Uniform Civil Procedure Rules 1999 for further information

Enforcement of the Certificate

The certificate may be enforced in a number of different ways. It depends on whether the respondent is an individual or a company. A money order can be enforced in the Courts (pursuant to the provisions of the Uniform Civil Procedure rules 1999 or pursuant to the provisions of the >> Corporations Act 2001

Enforcement against an individual or corporation may involve:

• The Seizure and sale of property
• Redirection of debts
• Redirection of earnings
• Payment of money order debt by instalments
• Charging orders
• Stop orders
• The appointment of a receiver

Queries on enforcement of statuatory debts through the courts should be directed to the relevant Court Registrar. It is recommended that independent legal advice be sought.