Anyone who has been involved in Adjudication under the various Security of Payments Acts (SOPA) will tell you that the time limits make it far easier to apply than to respond. If the claim is extensive, it is incredibly difficult for the Respondent to produce a fully reasoned and supported response document.
In each state, the timetable for adjudications is tight:
| State | Time to lodge Payment Schedule (PS)/Payment Claim (PC) | Time to Lodge Adjudication Application | Time to Respond |
| Queensland | Provide PS within 10 days of receipt of PC | Within 10 days from PS | Within 5 days from receipt of the Adjudication Application |
| New South Wales1 | Provide PS in accordance with contract or within 5 days from claimant's notice | Within 10 days after receipt of PS; or Within 20 days after the due date for payment of the PC; or Within 15 days from claimant's notice. |
Within 5 days from receiving a copy of the
Adjudication Application; or Within 2 days from receiving notice of the Adjudicator's acceptance of the Application. |
| Victoria | Provide PS in accordance with contract or within 10 days from PC (whichever is sooner); or within 2 days from claimant's notice. | Within 10 days after receipt of PS; or Within 10 days after the due date for payment of the PC; or Within 7 days from claimant's notice. |
Within 5 days from receiving a copy of the
Adjudication Application; or Within 2 days from receiving notice of the Adjudicator's acceptance of the Application. |
| Western Australia | No timetable for PS/PC is dictated by the Construction Contracts Act 2004 (WA) | Within 28 days from a "payment dispute"2 Arising | Within 14 days from receipt of the Adjudication Application |
As the above table indicates, even if the Respondent is on its toes, it has only 14 to 25 business days (depending on the state) from commencement of the formal payment process to prepare and submit a full response.
As site issues can turn into SOPA claims literally overnight, it is vital that you have risk management systems in place to identify and report potential disputes of significant complexity and/or value. This gives you the best chance of mitigating the issue by negotiation and also of preparing a response which has any chance of success in adjudication. On this last point, the difficulties faced by the Adjudicator should not be underestimated. Although these people are often Construction Industry experts, they only have the information put in front of them to go on. So where an application is well-written, supported by witness statements, expert reports and documents, the Respondent is fighting an uphill battle.
Responding to an Adjudication Application is as much a project management exercise as a legal one. The Respondent will need to analyse the claim and meet it with its own submissions, witness statements and expert reports. Unless it does so, it carries the risk of the Adjudicator being unable to find for anyone but the Applicant because it is the only party which has put forward any evidence in support of its argument. Thus, the potential Respondent must have a plan to pull the required members of the response team on board at the very earliest opportunity. Deacons' teams are familiar with this requirement and, as well as being able to field lawyers who have extensive industry experience, have made links with experts who are able to react quickly as required in the circumstances in the production of suitably abbreviated expert reports.
Finally, the date for commencement of preparation of an Adjudication Response is not the date of receipt of the Adjudication Application. We would argue that it is earlier than the date of receipt of the Payment Claim. Operational procedures on the project should encourage site teams to identify and report these issues as soon as they emerge so the associated risks can be mitigated.
Footnotes
1 All references to 'Days' in NSW relates to business days.
2 A "payment dispute" is said to arise if a payment claim is rejected or wholly or partly disputed.
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.
