PARA SU EVALUACIÓN
7. LA METODOLOGÍA A APLICAR
2.40. If there is a payment schedule and the claimant is unhappy with it; or if the respondent did not pay the amount stated in the payment schedule, the claimant may serve an adjudication application to an ANA to nominate an adjudicator. The application must be accompanied by an application fee as may be determined by the ANA.152 Currently, there are eight ANAs practicing in NSW.153 The adjudication application must be in writing and made to an ANA chosen by the claimant.154 Judicially, it was held that the adjudication application must not provide arguments altering the position in the payment claim or introducing new issues.155 The fact that the claimant has the discretion to choose its favourite ANA raised significant concerns within the industry about the apprehended bias claiming that the appointment process is a claimant friendly, thus flawed.156 2.41. The adjudication application must be made within 10 business days after the
claimant receives the payment schedule or within 20 business days after the due date for payment where any part of the scheduled amount has not been paid by the due date.157 If there is no payment schedule and the claimant elects to go to adjudication, the claimant must serve a notice on the respondent of the claimant’s intention to commence adjudication and give the respondent a second chance to issue the payment schedule within 5 business days.158 In this case, the
150 See Brookhollow Pty Ltd v R&R Consultants Pty Ltd [2006] NSWSC 1 at [34]-[41] (Palmer J) 151 Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238.
152 NSW Act, s 17(3)(g). 153 For the detailed list, visit,
http://www.fairtrading.nsw.gov.au/ftw/Tradespeople/Building_industry_essentials/Security_of_payment/Authoris ed_nominating_authorities.page
154 NSW Act, s 17 (3) (a)-(b).
155 See Leighton v Arogen [2012] NSWSC 1323.
156 Collins, B. (2012). Inquiry into Construction Industry Insolvency in NSW, NSW Government, p 72. 157 NSW Act, s 17 (3) (c)-(d).
48 adjudication application must be served within 10 business days after the expiry of the five business days.159
2.42. The respondent has the right to serve an ‘adjudication response’ within five business days after receiving the adjudication application or two business days after the adjudicator is appointed whichever time expires later160 provided that the respondent had served a payment schedule.161 The response must be in writing, identify the adjudication application to which it relates, and contain such submissions relevant to the response as the respondent wishes to include.162 However, the respondent is not entitled to raise new reasons other than those mentioned in the payment schedule.163 As such, the NSW Act somewhat facilitates the game of “ambush claims” where the claimant may spend several months, assisted by lawyers and experts preparing a comprehensive and lengthy payment claim for a substantial monetary amount, leaving the unsuspecting respondent with a few days only to respond in its payment schedule and adjudication response.
2.43. If the chosen ANA164 refers an adjudication application to an adjudicator, the adjudicator may accept the application by serving a notice of the acceptance onto the parties.165 Some ANAs will only refer an adjudication application to an adjudicator who has contracted to pay the ANA a proportion up to one third of the adjudicator's fees.166 The adjudicator’s notice should be served within four business days after the application is made, otherwise, the claimant may opt to withdraw its application.167 Having said that, the NSW Act has no express time limit for issue of an adjudicator’s acceptance to the parties. Such gap was criticised as it unnecessarily leads to a prolonged period of determination.168 2.44. By his or her acceptance, the adjudicator is taken to have been appointed to
determine the adjudication application and is obliged to determine it as 159 NSW Act, s 17 (3) (e). 160 NSW Act, s 21 (1). 161 NSW Act, s 22 (2A). 162 NSW Act, s 20(1), (2). 163 NSW Act, s 22 (2B).
164 For more details on how the nominating authorities are authorised by the government, refer to NSW Act, s 28. 165 NSW Act, section 19 (1).
166 Davenport, P. (2015) An update on security of payment in the construction industry in Queensland. RICS
Cobra 2015-Sydney, page 2.
167 NSW Act, section 26 (1).
49 expeditiously as possible and in any case within 10 business days after the adjudicator notified the parties as to his or her acceptance of the application or within such further time as both parties may agree.169 Since the respondent can submit the adjudication response within two business days after the adjudicator’s acceptance, it is very likely for an adjudicator to issue his or her acceptance without having any clue how the adjudication response would look like. This, of course, will limit the adjudicator’s ability to assess his or her capability of reviewing extremely complex cases. The “one size fits all” approach inherent in the statutory mechanism (dealing with all types and sizes of claims) has been much criticised for its inability to produce quality determinations for larger and more complex payment claims.170
2.45. The respondent must pay the adjudicated amount within five business days.171 Failure to do so will allow the claimant to request an adjudication certificate from the ANA and serve notice onto the respondent of the claimant's intention to suspend carrying out construction work.172 The adjudication certificate may be filed as a judgment for a debt in any court of competent jurisdiction and is enforceable accordingly.173 Section 7(1A) of the Contractors Debts Act 1997 provides that: “If an Adjudication Certificate…has been filed as a judgment for a debt in accordance with section 25 of the NSW Act, the court may…issue a Debt Certificate in respect of the debt due under this section.” However, the certificate cannot be filed unless it is accompanied by an affidavit by the claimant stating that the whole or any part of the adjudicated amount has not been paid at the time the certificate is filed.174