The Adjudication Process

Written by Steve Reid

Steve is a Registered Professional Engineer of 26 years experience and a Level 2 Adjudicator of 6 years experience. Steve has completed many Adjudications including complex claims exceeding $1.3m in value.



You are a construction contractor working under a contract to which BIF applies and you have made a payment claim where; 1.      The amount claimed was not paid by the respondent by the due date. 2.      The amount scheduled by the respondent was less than the amount claimed. 3.      The amount paid was less than the amount scheduled by the respondent. If any one of the three things above has occurred, you have the right to apply for Adjudication. Adjudication is a process whereby the amount of the payment claim will be independently decided based on the application and submissions of the claimant and respondent. An Adjudicator must decide the following;
  • Whether they have Jurisdiction to decide
  • If the application is frivolous or vexations
  • The amount of the payment claim
  • The due date for payment
  • The rate of interest
The Adjudicator does not have any other powers under the Act other than deciding the above, it’s not like a Judge ruling in a Court case, whom has more sweeping and greater reaching powers. Hence Adjudication is the fast and efficient interim solution to getting paid. Adjudicators often must decide the amounts of variations in dispute, extensions of time and dates of Practical Completion (where either liquidated damages or delay costs are associated) and often need to determine defect rectification cost issues or legal and or technical arguments as to why the Claimant may not be entitled to claim amounts that have been claimed. So who are the Adjudicators ? Adjudicators are specially trained individuals who have a history of working within the Building, Engineering and Construction industry and may have backgrounds such as Engineers, Quantity Surveyors or Lawyers to name but a few. These individuals are specially trained in the Building Industry Fairness Act and must sit and pass exams and assignments in order to gain an Adjudication Qualification. Before becoming Adjudicators they must apply to the QBCC and assessed such their qualifications, training and backgrounds are suitable to be appointed to become Adjudicators. Only after such appointment is someone an Adjudicator and they must maintain their Continued Professional Development every year. There are currently just over 100 registered Adjudicators in Queensland. The Application Process There are strict time limits on making an Adjudication Application based on the criteria of the payment claim fitting into either one of the three categories above. Generally, the application process must be made within 20-30 days depending on the category. Applying outside these timeframes will result in an application either not being accepted by the registry or a decision of No Jurisdiction being made resulting in no amount of the payment claim being decided. The application process begins with the completion of a 7 page form s79 Adjudication Application. The Application lists out brief relevant information about the claimant and respondent, type of project and payment claim amount, date and payment schedule amount and date and due date for payment information. Applications are then generally supported with a written Submission that covers all the relevant information about the dispute which may include submissions on;
  • Background of the Project
  • The Contract
  • Payment Claim
  • Payment Schedule
  • Reference Date
  • Due Date for Payment
  • Payment Claim Items in Dispute
  • Variations
  • Extension of Time
  • Practical Completion
  • Delay Costs
  • Liquidated Damages
  • Adjudicators Fees
Submissions can be simple and forming 10 or so pages all the way up to hundreds of pages supported by;
  • Statutory Declarations with Exhibits
  • Contract documentation
  • Project Documentation such as specifications, drawings, photographs etc…
  • Expert reports, which may be on delay claims analysis, quantity surveying reports, defects rectifications reports.
It would not be uncommon for complex claims to contain upwards of 20-30 A4 volumes of material however rarely does more equal better in terms of applications. It is far better to be concise, brief and factual such that the material can be easily understood as Adjudication Applications are on strict and brief deadlines in which to be decided. The object of the Act is a swift resolution of a payment claim dispute. Excluding any granted extensions of time, Decisions are generally required to be turned around within 10 business days from the last submission of material, placing a serious obligation on the Adjudicator in which to digest and understand the material from both sides and form a view on the strength and correctness of each argument in order to determine the Adjudicated Amount and form the Decision. Upon submission to the Registry of the application form, submissions and application fee the Registry then refers the Application to an eligible Adjudicator who in turn either accepts or rejects the referral. Referrals are rejected based on a conflict of interest, unavailability or other reasons of the Adjudicator. Rejected referrals are referred to other eligible Adjudicators. Upon acceptance of a referral the Adjudicator notifies the parties and begins the Adjudication. Parties are to copy each other into any and all correspondence with the Adjudicator, who normally uses the service of an agent to provide the separation between the parties. The parties then have no other part to play until such time as the Respondent, if they are entitled to provide an adjudication response by having served a Payment Schedule, provides it. Up until such time the Claimant and Respondent should restrain themselves from contacting the Adjudicator about anything as these will be considered as unsolicited submissions which generally are not to be taken into account. The only exception would be where a genuine unsolicited submission may be made on a matter of jurisdiction that affects the Adjudicators powers to decide the application. Such unsolicited submissions should not be made on Jurisdiction on a whim, on unsubstantiated or reaching arguments as they may ultimately go to the Adjudicators decision as to costs. Adjudicators may, where they deem it necessary, request the parties to provide further information in the form of a Request For Further Submissions RFFS. Each party may provide submissions on the matters raised by the Adjudicator and comment on the other parties submissions. Adjudicators also have the powers to call conferences and perform inspections however this is relatively rare that an Adjudicator would do this as the object of the act is to decide based on the material before them rather than to enquire. The deadline for deciding an application is within 10 -15 days (depending on a standard or complex claim) of the provision of the Adjudication Response by the respondent should they be eligible to provide one. The decision is a written document outlining all the particulars of the Adjudication Application, the background and issues in dispute together with the Adjudicators reasons for their decisions on the material of that of the Claimant and Respondent, the adjudicators valuation of the payment claim items and determination of the issues arriving at an adjudicated amount, the due date for payment and the rate of interest that applies to any payment and the decision of the split between adjudicator fees between the Claimant and Respondent. Upon a decision being made the parties are notified along with the adjudication fees invoice which is to be paid before the release of the decision. Irrespective of the split between fees or decided amount the invoice is generally accepted to be made out to the Claimant who has commenced the application and has the interest in receiving the decision. Upon payment the decision is released and the claimant and respondent then know the decided amount, fee split and can manage accordingly. The registry is notified of the decision and forwarded a copy where they prepare and issue an Adjudication Certificate which can be used to file as a judgement debt in a court of competent jurisdiction and be enforced. It is at this point that an Adjudicators job is complete with the only remaining task to complete being to confidentially manage the destruction of any documentation provided for the adjudication. Want to know more ? Check out some of our more detailed information on Adjudication here. We have put together a comprehensive guide in 7 parts. You can download all of them as a consolidated paper here.

You may also like…


Submit a Comment

Your email address will not be published.