Construction Law Assignment: Adjudication Application (2019)

This assignment is a student's response to a Construction Law problem, specifically a mock adjudication application under the Building and Construction Industry (Security of Payment) Act 2009 (ACT). The scenario involves a dispute between Dirt Diggler Pty Ltd (subcontractor) and Crook Constructions Pty Ltd (contractor) regarding payment for excavation works on the ADFA extension project. The assignment details the deadlines for making an adjudication application, the process of obtaining and completing the required application form, and the role of an Authorized Nominating Authority (ANA). It outlines the necessary documentation, including the payment claim, project schedule, and contract, and the steps Dirt Diggler must take to initiate the adjudication process. The document analyzes the specific deadlines applicable to the case, focusing on the scenario where payment was not received as scheduled, and the subsequent steps required to issue a notice of intent to lodge an adjudication. The document also discusses the fees associated with the ANA and the adjudicator and highlights the importance of accurate and comprehensive documentation. The assignment is based on provided documents like a progress claim and a certificate for progress claim, and demonstrates the student's understanding of the adjudication process in construction law, providing a detailed analysis of the timelines, procedures, and requirements for a successful application.

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Construction Law
Date
Course
Institution Affiliation

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Making an Adjudication Application
When one agrees to undertake any construction activity, the person is liable to make any
claim, as long as there was a binding contract before the commencement of the work. Our case
involves the subcontractor making a claim against a contractor. Upon the realization that the
contractor owes the subcontractor some amount of money which were recorded under a either a
written contract or by oral means, the contractor can as well make such kin of a claim under the
construction act 20041, which is open to the discretion of the adjudication. However, there are
timelines within which such kind of claims can be made, and these apples to both the claimant,
in our case being the subcontractor, as well as the defendant, who is the contractor in our case. In
regards to this statement, below are the deadlines which n applicant needs to abide by:
 When a person has received an amount which had earlier been agreed upon, and this
amount does not reach the claimed amount which has already been made, the individual
will have a maximum of ten business days to lodge an application from the day such
amounts were released a stipulated in section 17(3)©.
 When a person received an amount which had already been agreed upon, and such that
there is no dispute thereof, if the respondent does not honor the payment, then the
contractor will be entitled a maximum of twenty business days from the time of
scheduled payment to lodge an application as per section 17(3)(d)2
 Finally, when an individual does not receive the payments which had initially been
agreed upon and scheduled, the person will have a maximum of twenty business days to
1 Andrew Shelton & Co Pty Ltd v Alpha Healthcare Ltd (2012) 5 VR 577.
2 Australian Competition and Consumer Commission v TPG Internet Pty Ltd(2013) 250 CLR 640.

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issue the respondent with a notice on their intent of lodging an adjudication as per the
section 17(2)(a)2. At such juncture, the respondent has an opportunity to issue a business
schedule within a period of five business days or become liable to furnished with the
notice stipulated above (17(3)(b). Moreover, in case that a response has not been issued,
the contractor shall have a total of business days from the fifth day of issuing the notice
to lodge an application as regards to section 17(3)(e)3
In the case of dirt digger, the crook constructions had debited $990,000 on the dirt digger
limited company, claiming that it was for the liquidated damages. This will imply that dirt digger
will go according to the third deadline schedule, which states that:
When an individual does not receive the payments, which had initially been agreed upon
and scheduled, the person will have a maximum of twenty business days to issue the
respondent with a notice on their intent of lodging an adjudication as per the section
17(2)(a)2. At such juncture, the respondent has an opportunity to issue a business
schedule within a period of five business days or become liable to furnished with the
notice stipulated above (17(3)(b). moreover, in case that a response has not been issued,
the contractor shall have a total of business days from the fifth day of issuing the notice
to lodge an application as regards to section 17(3)(e)2.
3 Australian Competition and Consumer Commission v TPG Internet Pty Ltd(2013) 250 CLR 640.

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Obtaining and completing the ANA’s required adjudication application form
The process of adjudication is to begin an inference of the dispute to the
adjudication via formal writing by the claimant (dirt digger-subcontractor). As per
the statutory scheme for adjudication, which is brought about by the construction
activity, in the arbitration, should entail various issues such as:
The location of the dispute as well as other particulars, the nature of the
sought remedy, the time that the dispute came forward, the quality of the
conflict which is brought up by the parties, the addresses as well as the names
of the parties involved in the dispute, the addresses where the dispute, as well
as other documents, have been served.
When making an adjudication, it is the major duty of the claimant to ensure
that all the details which are provided are void of any corrections and errors. After
this has taken place, the appointment of the adjudicator shall be conducted, which
shall occur within the first seven business days of issuing a “service of the Notice of
Adjudication’’4. At this particular juncture, the involved parties can decide on the
adjudicator which they would wish to be involved, that is if they come into agreement. The
claimant thereafter is supposed to make a formal presentation to the “adjudicator nominating
body”. This shall be conducted by way of the settling of the anticipated fees as well as
completion of an adjudication form5. After the acceptance of the recommendation of an
4 Australian Law Reform Commission, Traditional Rights and Freedoms:Encroachments by Commonwealth Laws (Report No
129, December 2015) (‘Traditional Rights and Freedoms’).
5 Australian Law Reform Commission, Traditional Rights and Freedoms:Encroachments by Commonwealth Laws (Report No
129, December 2015) 209 [7.111] (‘Traditional Rights and Freedoms’).

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adjudicator is made and is successful, the authorized nominating authority shall
communicate the information to the claimant within five business days of lodging the
application.
If in the event, the requiSItes for nominating the adjudicator fails, the entire process
shall be canceled, and the claimant shall be at disposal to select another ANA.
Moreover, the claimant, in his aims shall ensure that the following are attained by the
selected ANA;
I. The details of the claimant: the name of the applicant, the business address, the
company’s telephone number, website, and email address are all indicated6.
II. The historical records of the company, in this case, the crook limited company- this
can be obtained from the “Australian Securities and Investments Commission
(ASIC)”.
III. Any published legal documents such as a police check, which applies for any person
who is willing to issue the ANA services under the construction act, section 32
IV. Additionally, if in case the data on the illustrations of the sections of the applicants
“building and construction industry” which has been distributed should capture the
details of the organization such as name and other presentations
V. There shall also be an illustration of whether the data which has bee provided on the
applicant’s procedures are correct and that they have satisfied the criteria of eligibility
under the satisfaction by any of the adjudicators in addition to some of the relevant
information.
6 Australian Law Reform Commission, Traditional Rights and Freedoms:Encroachments by Commonwealth Laws (Report No
129, December 2015) 209 [7.111] (‘Traditional Rights and Freedoms’).

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VI. Any data which is issued by the claimant on certain procedures is validated by the
ANA and that its adjudication i9nference is certified to be eligible, and handled
impartially, and with a lot of integrity7.
For the adjudication document to be fully comprehensive, details on the initial
proposals by the claimant (dirt diggers), initially raised complains, as well as initially
provided and documented responses shall be provided, which aims at issuing the adjudicator
with the reports under this act. Furthermore, details of the process which the applicant has
secured for detection of the conflict of interest between the claimants, adjudicators as well as
respondents. By extension, the background, experience, and qualifications of any
informer applicant that in any way might be regarded to be of significance to the
minister to see to whether the applicant needs to be granted any authorization 8.
Finding an authorized nominating authority
An authorized nomination authority needs to make the individuals who are concerned
with the process of adjudication aware of the claimant procedures. Dirt Diggler, being the
claimant, is expected to do a report to the VBA on the complaints which have been received so
far from the authorized nominating authority9. The later as well can decide to contact any of the
adjudicators from the SOP act. Any complaint from the process should be reported to the VBA
in writing. The complains can as well emanate from decisions made by any adjudicator, officer
7 Burger King Corporation v Hungry Jack’s Pty Ltd (2011) 69 NSWLR 558, 570 (Sheller, Beazley and Stein JJA), quoting
Metropolitan Life Insurance Co v RJR Nabisco Inc, 716 F Supp 1504, 1517 (Walker J) (SDNY, 1989).
8 Dietrich Fausten, Ingrid Nielsen and Russell Smyth, ‘A Century of Citation Practice on the Supreme Court of Victoria’ (2010)
31(3) Melbourne University Law Review 733, 801
9 Foster, Michelle, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (Cambridge
University Press, 2016)

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or personnel of the authorized nomination authority. Prior to making a final decision on which
the authorized nomination authority to apply, t is essential to seek the amount being paid
towards the same. For instance, the authorized nomination authority will most probably charge
an application fee for the whole process as well as the associated application10.
Nonetheless, if the issues have been kept less sophisticated with the involved parties, the
fees can be minimized. The involved parties are required to append all the relevant documents
alongside the adjudication applications well the adjudication response in hence avoiding
unnecessary order to increase the pace of the process hence averting unplanned expenses11.
The adjudicators in most of the instances are likely to charge the fees on an hourly basis, while
other adjudicators might charge with regards to the cost incurred while doing visits to the site.
Further, an adjudicator has the authority to keep the information secretive until the time that all
other pending expenses have been resolved. In other instances, one of the parties might fail to
pay the adjudication fees, and in such a case the remaining party can decide to pay the fees on
his or her behalf so that the determination of the adjudication process is released12.
Choosing of the authorized nominating authority
Dirt digger will be in charge of choosing the ANA that will receive the adjudication
application, thereafter, nominate the adjudicator and finally issue an adjudication certificate.
This procedure will be simple; as dirt digger company shall first consider the fees of the various
10 Hathaway, Oona A, Sabrina McElroy and Sara Aronchick Solow, ‘International Law at a Crossroads’
(2012) 7(1) Yale Journal of International Affairs 54
11 Hathaway, James C and Audrey Macklin, ‘Should We Presume State Protection?’ (2016) 32(3) Refuge 49
12 Kift, Sally, Rachael Field and Ian Wells, 'Promoting Sustainable Professional Futures for Law Graduates through Curriculum
Renewal in Legal Education: A Final Year Experience (FYE2)' (2018) 15(2) eLaw Journal: Murdoch University Electronic
Journal of Law 145,

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ANAs, and thereafter cross-check their likely expenses.13 By extension, the claimant shall also
outline the various issues which the claim involves, and the various qualifications which need
to be met by the adjudicator. After, this, the ANA will forward the application to the
adjudicator who will decide whether to accept the certificate or not. Some of the various lists of
the ANA includes:
Application for the adjudication
Upon receiving an adjudication form from any of the authorized nomination authorities, the
claimant (dirt digger) shall ensure that the application is:
 In writing
 Entail a request of nomination by the adjudicator
 Is lodged within the recommended time limits
 Serve the contractor (respondent) with the same consecutively
 Attach an application fee as well14
 Attach a copy of the payment claim
 Attach a copy of the project schedule
 Attach all the information which will be relevant to the adjudicator.
 Attach a copy of the contract15
After submitting the adjudication application form alongside the aforementioned
documents, the claimant (dirt digger) shall wait for a maximum period of four business days,
13 Hathaway, James C and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2nd ed, 2014)
14 Hathaway, James C, The Rights of Refugees under International Law (Cambridge University Press, 2015)
15 Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press, 2013). Cf Barendt (n 68)
67.

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upon which failure to receive a notice from the adjudicators, the claimant shall withdraw and
then reapply with another authorized nomination authority, in a period of five business days.
 Adjudicate Today Pty Ltd
 Australian Building & Construction Dispute Resolution Service
 Australian Solutions Centre Pty Ltd
 Expert Adjudication
 Master Builders Association of New South Wales Pty Ltd
 Resolution Institute (formerly known as LEADR & IAMA)16
 Royal Institution of Chartered Surveyors Dispute Resolution Service (RICS DRS)
16 Young, Simon and Sarah Murray, 'An Elegant Convergence? The Constitutional Entrenchment of Jurisdictional Error Review
in Australia' (2011) 11(2) Oxford University Commonwelath Law Journal 117

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Adjudication Application Form
To make the adjudication application, there are some fundamental items which will be
included and the dirt diggers company needs to be aware of. Some of these documents will
include
a) The Claimant’s submissions/story
b) “A copy of the contract , Claimant’s Payment Claim, Respondent’s Payment Schedule,
Respondent’s Payment Schedule
c) “All other relevant submissions and documents.”17
d) “Claimant details and Respondents details”18
e) “Contract/ agreement details
17 Transcript of Proceedings, North East Solution Pty Ltd v Masters Home Improvement Australia Pty Ltd (Supreme Court
of Victoria, Croft J, 18 May 2015) 31 (PJ Bick QC).
18 Russell Smyth, ‘Citations by Court’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford
Companion to the High Court of Australia (Oxford University Press, 2011) 98, 98.

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Evidence needed to be gathered by Digger in support of the adjudication
application
The payment claim, which is the date of payment
The number of the payment claim19
The amount of cash which is claimed
The time of payment claim as per the respondent (contractor)
The date of claiming the payment20
Payment schedule concerning payment claim
(a) Whether the payment schedule had been indicated within the last ten days
(b) The scheduled date of payment
(c) The payment date as received by the claimant
(d) The total amount of payment Agenda
Due date payment
(a) “In the ACT there are two possible due dates for payment” As per the written contract;
(b) “A default under the legislation of 10 business days.”
(c) The scheduled date of payment
(d) Amount scheduled for payment
(e) The date payment schedule as previously received by the claimant.
(f) Whether any payment has since been indicated since the claim to receive a refund.
19 Paul Bick, "Statutory Reform Of Aspects Of Construction Law In Australia" (1997) 15(6) Construction Management and
Economics.
20 Ramsay, Ian M and Nicholas Lew, ‘Corporate Law Reform and Delisting in Australia’ (2017) 2(2) Virginia
Law & Business Review 265

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Why dirt Digger is entitled to be paid the amount it is claiming
Before making an adjudication application, it is the prerogative of the claimant to ensure
that the information which is provided in the documented thereof, is correct and void of mishaps.
By extension, the document and the attached documents which are submitted has to be
understood and agreed upon by the parties which are involved. In addition to this, the required
fees as per the terms of the adjudications have to be settled prior to beginning the process so that
it goes on smoothly and successfully. In that kind of situation that the contractor defaults their
performance, the act stipulates that they issue a notice in writing on what they anticipate of the
contractor to issue reasons why continue with accordance to the adjudication. Hence, in
reference to this fact, it is very clear that a portion of the work was unduly and un- procedurally
terminated by the contractor, without any proper agreement.
Further, it did not provide the subcontractor with any clear reason as to why the
termination was valid, and would, later on, resurface with another company Roller guys Pty Ltd,
a competing earthmoving company, undertaking the earthworks for the accommodation
buildings component. From this, it is crystal clear that the contractor did not honor the agreement
and worse, could not give an ear to the subcontractor who had already purchased various
machinery and hired personnel to help in completing the task21.
Additionally, there was no solid reason provided by the contractor to the subcontractor
(dirt digger) as to why they were not to proceed with the task, and also the notification timeline
was not within the stipulated regulations. In this case, the contractor failed on his part to provide
the legal framework for the termination of the task, and thus the principle adjudicator is entitled
21 Paul L Davies, Gower’s Principles of Modern Company Law (Sweet & Maxwell, 6th ed, 2017) 348 nn 22–4.