Adjudication
What is adjudication?
The State governments in NSW, Victoria, Queensland and WA have adpoted legislation to ensure regular and prompt payment for work done under contracts in the construction industry.
Under these laws claimants who have provided work, goods or services can force the respondent to make payment on account. The scheme has been set up to provide speedy and inexpensive management of disputed claims.
The process used is "adjudication" and is designed to maintain progress payments under dispute. Claimants who have a dispute over payment can lodge an adjudication application with an Adjudicator or Authorised Nomination Authority (ANA). The Adjudicator is a person agreed between the parties or nominated by an ANA to determine a payment dispute.
The Institute is an authorised ANA and training body. Relevant State Chapter Office staff can assist you with enquiries about how to implement a claim. IAMA has lists of suitably qualified adjudicators ready for nomination.
Body Corporate Adjudication And Other Processes
The Queensland government also has legislation to assist lot owners in body corporates (and other defined parties) to resolve disputes by mediation, conciliation or adjudication. The legislation includes provisions for parties to nominate their own ADR "specialist" for approval by the Commissioner to resolve their dispute, there are even some disputes for which it is mandatory that the Applicant nominates a "specialist". The New South Wales and Victorian governments are currently reviewing their legislation affecting body corporates and may introduce similar provisions. For further information regarding the Queensland provisions see the link under "Queensland".
Legislation
Please note that the legislation in each State differs. Please check the relevant guidelines published by each government and the legislation itself to ensure you are aware of the applicable provisions in your jurisdiction.
NSW
NSW Adjucation
Building and Construction Industry Security of Payment Act 1999
Building and Construction Industry Security of Payment Regulation
2001 Contractors Debts Act 1997
Casenote: Brodyn v Daesin (PDF 16kb)
Guidelines and Brochures
With the recent high profile insolvencies of Walter Construction and Henry Walker Eltin, the decision in Brodyn v Dasein might be critical to many in the construction industry. It involved claims and counter claims regarding judgement debt under the Security of Payment Act vs contract claims against the subcontractor by the head contractor and whether they could be set off against each other once the head contractor had gone into administration. This casenote was prepared by Ian Taylor and Sarah Druce, senior construction practitioners from Corrs Chambers Westgarth, Sydney. Mr Taylor and Ms Duce have extensive experience in security of payment matters; Mr Taylor has acted in major insolvencies over the last few years.
Victoria
Relevant construction contracts signed on or after 30 March 2007 are affected by the Building and Construction Industry Security of Payment Act 2002 (incorporating amendments as at 30 March 2007); and Building and Construction Industry Security of Payment Regulation 2003 (incorporating amendments as at 30 March 2007).
Relevant construction contracts signed between 31 January 2003 and 30 March 2007 are affected by the Building and Construction Industry Security of Payment Act 2002 (as originally enacted); and Building and Construction Industry Security of Payment Regulation 2003 (as originally enacted).
Guidelines and Brochures are available on the Building Commission website.
Process & Fees charged by IAMA in Victoria.
Queensland
QLD Adjucation
Building and Construction Industry Payments Act 2004 (PDF 532kb)
Building and Construction Industry Payments Regulation 2004 (PDF 320kb)
Guidelines and Brochures
Casenote: Brodyn v Daesin (PDF 16kb)
Western Australia
WA legislation - Construction Contracts Act 2004
Guidelines and brochures
New Zealand
United Kingdom
UK legislation concerning adjudication in the construction and telecommunications industries:
The Housing Grants, Construction and Regeneration Act 1996 ("HGCRA")
The Scheme for Construction Contracts (England and Wales) Regulations 1998 ("The Scheme")
The Construction Contracts (England and Wales) Exclusion Order 1998
The Housing Grants, Construction and Regeneration Act (England and Wales) (Commencement No. 4) Order 1998
The Scheme for Construction Contracts (Scotland) Regulations 1998
The Construction Contracts (Scotland) Exclusion Order 1998
The Housing Grants, Construction and Regeneration Act 1996 (Scotland) (Commencement No. 5) Order 1998