If you are involved in a contract under which there is
likely to be a dispute over a payment claim then you may be at an
increased risk of receiving an adjudication application under the
Construction Contracts Act 2004 (WA) over the Christmas
WHAT IS THE PROBLEM?
Unlike proceedings in many courts and tribunals, the time
periods for adjudications do not stop running during the Christmas
Some contractors (and their lawyers) attempt to take advantage
of this fact by serving their application for adjudication on
respondents during the Christmas closure period so that they can
obtain a tactical advantage by catching you out while people are on
WHY IS THIS A PROBLEM?
Under the Act, a party who has been served with an application
for adjudication only has 14 days within which to prepare and serve
a response. This 14 day time period continues to run through the
Importantly, the Act requires respondents to include all
documents and evidence relied upon in the response. There is no
other opportunity to respond to the claims made by the applicant in
the adjudication. Nor is there an opportunity to request more time
within which to serve a response.
WHAT CAN YOU DO TO MINIMISE THE RISK OF BEING CAUGHT OUT OVER
THE CHRISTMAS BREAK?
Be prepared and keep the following preventative measures in
Prepare a plan: Prepare a plan or a set of
procedures which can be followed in the event that an adjudication
application is served on you or your company. Ensure that all
relevant personnel are aware of these plans or procedures. Consider
the following questions. Who is likely to be served with the
application? Who will be available over the Christmas period to
respond to that application? Which personnel will likely have
knowledge of the subject of the application? Will they be available
over the Christmas period?
Monitor all communications: Make arrangements
to monitor all avenues of communication over Christmas, including
email. Emails and fax communication should be automatically
forwarded to a designated member of staff who can immediately deal
with the application. You could also ensure that you have a member
of staff regularly check any offices where mail is directed, and
open any packages when they arrive.
Contact your lawyer now: If you anticipate a
possible dispute about payment in the lead up to the Christmas
period, contact your lawyer now so that they can arrange to be
'on call' over the Christmas period and, ultimately, assist
you in the event that you or your company are served with an
adjudication application during that period.
Start preparing a response in advance: If you
anticipate receiving an adjudication application during the
Christmas period, think about preparing a response in advance
(begin by collating all relevant information and documentation and
considering how to respond to the merits of that application).
Take action promptly upon being served with an
application: If you or your company receive an
adjudication application, take action promptly. Do not put
adjudication applications to the side or put them in the 'too
hard basket'. As soon as you have been served with an
application, time is ticking, even over the silly season. It
doesn't matter if you only became aware of an adjudication
application several days after it was served.
Consider proactive measures: Contemplate
whether any current claims for payment or disputes about payment
could be dealt with or settled before the Christmas period to avoid
the risk of an application for adjudication being served during the
Christmas closure period.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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