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Under the Section 17 of the Building and Construction Industry Security of Payment Act 1999 (NSW) a party involved in a building and construction dispute can apply for what’s known as an adjudication of a payment claim. The process is commenced first by the applicant serving on the respondent what’s known as a payment claim. That is a document that outlines the debts that it owed by the respondent to the applicant. Section 17 however does contain some conditions on the party’s right to make an application for an adjudication. One of the three conditions, which are outlined below, must be met first:

  • The respondent to the application must have served what’s knows as a payment schedule on the applicant, where the amount on the payment schedule is less than what is claimed by the applicant;
  • The respondent fails to pay any of the disputed amounts which is articulated on the payment claim; and
  • The respondent either fails to provide a payment schedule or pay any of the claimed amounts to the applicant.

It must be remembered that the processes under the Act have very strict time and form provisions. This means that where any of the particulars of a payment claim or a payment schedule does not conform with the requirements of the law, they may be deemed defective in form and not valid. Any rights arising from their service on the other party will therefore not be available. Likewise, where action is taken by a party out of time, that action may no longer be available to that party.

The Act itself contains many terms which appear to convey discretions on the part of a future court or tribunal, and some parts of the Act can be ambiguous. The law relating to the interpretation of statutes can be confusing. It is important, therefore to urgently obtain legal advice from a Building and Construction Solicitor when a party finds himself engaged in a potential or pending Building and Construction Law dispute. The adjudication process itself is not a Court or Tribunal process. The adjudicator will be a person who has been appointed as an adjudicator for the purposes of the Act. This will be a person who has extensive experience dealing with Building and Construction disputes and will be in a position to assess the parties’ claims and counter-claims.

A Building and Construction Lawyer who has experience in dealing with both Civil Litigation disputes and Commercial Litigation disputes will be able to provide the adjudication legal advice necessary for either the applicant or the respondent. Action taken in regards to an adjudication application must be timely, prompt, and it is absolutely essential that documents served comply with the legal requirements. The benefit of retaining the services of a Building and Construction Disputes Law Firm which has a cross-disciplinary team of litigators, is that they will be in a position to share resources and analyse the dispute in a more detailed manner.

If you require assistance with a Building and Construction litigation matter, you may wish to contact our office by telephone on (02) 9233 4048 or email to info@navado.com.au and make an appointment to see one of our solicitors in our Sydney CBD head office. By appointment, we can also make a time for you to see one of our lawyers in one of our branch offices. For a complete list of our branch offices, please peruse our "Locations"  tab.

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This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.

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