ASDJUDICATION REVIEW The adjudication process established by the Building and Construction Industry Security of Payment Act 2002 is intended to provide a quick and inexpensive way to resolve payment disputes arising under construction contracts. In support of this aim, adjudicators’ decisions are generally not reviewable. However, an adjudicator’s determination may be reviewed by another adjudicator in limited circumstances. This process is available to both parties. Which determinations may be reviewed? A determination may be reviewed where: The parties entered the contract on or after 30 March 2007, and The adjudicated amount exceeds $100,000. Grounds for review The grounds for review are limited. A respondent may seek review of a determination on the ground that the adjudicator wrongly included in the determination amounts which are ‘excluded amounts’. A claimant may seek review of a determination on the ground that the adjudicator failed to include in the determination an amount or amounts wrongly identified as ‘excluded amounts’. How to apply The application must be made to the Authorised Nominating Authority (ANA) to which the adjudication application was made. Applicants have five business days after receiving the adjudication determination to apply for review. There is no prescribed form for an adjudication review application. It must be in writing and must be accompanied by the ANA’s application fee (if any). The applicant must give a copy of the application to the other party to the adjudication review within one business day after making the application. Additional requirements for respondents Respondents can apply for review only if they have taken all of the following steps: They provided the claimant with a valid payment schedule on time. They identified an ‘excluded amount’ in their payment schedule or adjudication response. They have paid the claimant all the undisputed amounts determined by the adjudicator. They have paid any amounts they have identified as ‘excluded amounts’ into a designated trust account, and given the claimant details of the account. The adjudication review process Right of the other party to make submissions The other party to an adjudication review (the party responding) has three business days after the applicant sends them a copy of the application to make submissions to the ANA in response. Appointment of review adjudicator The ANA will appoint a review adjudicator and notify the parties within five business days of receiving the application. An adjudicator who has been involved in the original determination cannot be appointed. Conduct of the review The review adjudicator must complete the adjudication review within five business days of accepting the appointment. This time may be extended to 10 business days if the claimant agrees. In conducting the review, the review adjudicator will consider the adjudication determination, the adjudication review application, any submissions made by the responding party and the information that the adjudicator who made the original adjudication determination considered (such as the payment claim, payment schedule, adjudication application and response). The review determination The review determination will be in writing and set out the reasons for the determination. The review adjudicator must specify: Whether the review determination varies the adjudication determination, and if so, how. Any amount that either party must pay the other, and when it is due. Any interest which is payable and when it is due. Withdrawal of adjudication review application An applicant may withdraw an adjudication review application at any time before the review adjudicator has made a review determination. If the respondent withdraws the application, any money held in the designated trust account (including any interest accrued) is paid to the claimant.
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