Victoria

The adjudication process starts when a claimant issues a payment claim to the respondent. All legislative criteria must be met, and your payment claim must be served correctly on the respondent.

A payment claim must:

• Be in writing
• Include the words ‘This is a payment claim under the Building and Construction Industry Security of Payment Act 2002 (VIC)’, or words to the same effect
• Describe in detail the construction work, related goods or services which are the subject of the claim
• Be addressed to the respondent
• State the amount claimed.

How can I serve a payment claim on a respondent?

• Hand delivery
• Email (you can refer to the Electronic Transactions (Victoria) Act 2000 in respect of the time the email will be taken to have been received)
• Post to the respondent’s ordinary place of business address
• Fax to the respondent’s ordinary place of business.

You should keep a copy of evidence of service. For more information about making a payment claim you can click here and you can access a sample payment claim here

Under the Act a payment schedule is due to be issued by the respondent:

• within the time required by the terms of the contract; or
• if the contract does not specify a date, within 10 business days after the payment claim has been served,

whichever time expires earlier.

A payment schedule is a response to a payment claim by the respondent. It must (as per the Act):

• Be in writing
• Be addressed to the claimant
• Identify the payment claim to which it relates
• State the scheduled amount that the respondent proposes to pay (even if that amount is $NIL)
• Provide detailed reasons for withholding payment if the amount proposed to be paid is less than the claimed amount.
• Identify any amount of the payment (if any) that the respondent alleges is an excluded amount.

The payment schedule is served:

• Within the time required by the relevant construction contract or
• Within 10 business days after the payment claim is served

whichever time expires earlier.

Please note, that the due date for the payment and the time for providing a payment schedule may not be the same. It will depend on what date (if any) is specified within the relevant construction contract.

A s 18(2) Notice can be issued if the respondent does not pay or provide a payment schedule in response to the claimant's payment claim. It serves as notice of the claimant's intention to apply for adjudication if the claimed amount remains unpaid.

The claimant has 10 business days after the due date for payment of the payment claim to issue a s 18(2) Notice.

Once a s 18(2) notice has been issued, a respondent has two business days to provide payment or a payment schedule.

The s 18(2) Notice must:

• Be made in writing
• Refer to the original payment claim
• State that it is ‘a Section 18(2) Notice according to the Building and Construction Industry Payments Act 2002 (VIC)’
• Advise the respondent they have an opportunity to provide a payment schedule within two business days after receiving the notice.
• State that you intend to apply for adjudication.

Once the two business days following the service of the s 18(2) Notice on the respondent have expired, the claimant has five business days within which to make an adjudication application to an Authorised Nominating Authority (ANA), such as Resolution Institute. The respondent will not have the right to respond to the adjudication application when this occurs.

For more information about serving a s 18(2) notice and to access a sample notice you can click here

An adjudication application must (as per the Act):

• Be in writing
• Be addressed to the ANA
• Be accompanied by the appropriate application fee (if applicable). Please note no application fees are charged by Resolution Institute in its role as an ANA
• Identify the payment claim and the payment schedule (if any) to which it relates
• Contain submissions relevant to the claim, such as the history of the relationship between the parties, and all correspondence and documentation that will support your case. The content included in your application is decided by the claimant.
• Be sent to the respondent at the same time the application is sent to the ANA. Evidence of service of the application to the respondent should be provided to the ANA.

You may apply for adjudication if:

• You disagree with the amount the respondent offers in the payment schedule, and it is less than 10 business days since you received the payment schedule
• The respondent offers to pay $Nil in the payment schedule and it is less than 10 business days since you received the payment schedule
• The respondent fails to pay the whole or part of the amount due and it is less than 10 business days since the due date for payment has passed
• The respondent fails to issue a payment schedule and it is less than five business days since the two-business day period after the issue of the s 18(2) Notice has passed.

Applications can be submitted by:

Completing the online form

If you are unable to lodge online, you can submit your application by:

• Email: to [email protected] (with all supporting documents attached in readable formats e.g. PDF, Excel, etc.)
• By post to Resolution Institute PO BOX 440 Chatswood NSW 2057
• Or in hard copy to the address below:

Compass Offices (Melbourne)
Level 21, 459 Collins Street
Melbourne CBD VIC 3000
Tel: 1800 883 753

Opening hours:  9am to 5pm, Monday to Friday

If the respondent has provided a payment schedule within the time specified by the Act, the respondent may lodge an adjudication response. The appointed adjudicator will advise how the response should be lodged. It should be lodged within:

• Five business days of receiving a copy of the application; or
• Two business days of receiving notice of an adjudicator’s acceptance

whichever is later.

An adjudication response (as per the Act):

• Must be in writing
• Must identify the adjudication application to which it relates
• May contain submissions relevant to the response
• Must be served on the claimant (and copied to the ANA) at the same time it is served on the appointed adjudicator

For more information about responding to an adjudication application you can click here and you can access a sample adjudication response here

 

The determination is due within 10 business days after the date of the adjudicator's notice of acceptance (subject to the claimant agreeing to up to a further 5 business days extension for the adjudicator to determine the application).

The parties are jointly and severally liable for the full amount of the adjudicator’s fees. The precise allocation between the parties in respect of these amounts is specified in the determination. Parties should note that;

• The adjudicator is not required to release the determination until the adjudicator's fees and expenses have been paid.
• Is it usual practice for the claimant to pay the entire amount of the adjudication fees and expenses. The Act contemplates this and requires  that in such circumstances the adjudicator must add the respondent's contribution, as the case requires, to the adjudicated amount. 

After the determination is released, the respondent is required to pay the adjudicated amount (if any) within five business days from its release.

Failure to make this payment entitles the claimant to request (in writing) an Adjudication Certificate from Resolution Institute to file a Judgement Debt in the appropriate court of jurisdiction.

Resolution Institute is not at liberty to advise the respondent or any of its representatives whether an adjudication certificate has been requested or issued.

Application fees

No application fees are charged by Resolution Institute

Adjudicator fees

Quantum (excl GST)	Adjudicator fee (Fixed and incl GST)
Under $7,000	$750
$7,001 to $15,000	$1,100
$15,001 to $25,000	$2,200
$25,001 to $40,000	$3,300
$40,001 to $70,000	$4,400
$70,001 to $99,999	$5,500
Claims over $100,000	*Adjudicators hourly rate applies

 

*On average an adjudicator charges an hourly rate which varies between $245 to $450 per hour (exclusive of GST) depending on the level of experience of the adjudicator appointed.

The relevant fees are payable at the time the parties to an adjudication are notified of a decision by the adjudicator. However, the amount of the adjudicator's fees will depend on the number and complexity of the issues in dispute.

Adjudication certificate fees

No fees are charged by Resolution Institute to issue an Adjudication certificate.

If you have any questions please call our dedicated Nomination Services Officer on 1800 651 65.