CORP/BUSS LAW 1: Advice on Making an Adjudication Application Report

This report provides detailed advice on making an adjudication application, focusing on a case involving Dirt Diggler and Crook Constructions under the Building & Construction Industry (Security of Payment) Act 2009 (ACT). It addresses key issues such as the initial contract, payment claims, and the impact of contract modifications. The report outlines the process of finding an authorized nominating authority (ANA), obtaining the required application form, and the deadlines for filing. It examines the dispute over payment, including Crook Constructions' deductions for liquidated damages and the reasons why Dirt Diggler is entitled to the claimed amount. The analysis covers the relevant sections of the Act, timelines for application, and the roles of the ANA and adjudicators. The report emphasizes the importance of accurate information, supporting documentation, and adherence to legal procedures in the adjudication process. The assignment is based on a mock adjudication application, testing the ability to develop and evidence an argument in support of a claim for payment.

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Corp/Buss Law
Course
Institution Affiliation

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Table of Contents
Advice on Making an Adjudication Application.............................................................................3
Issue.............................................................................................................................................3
Finding an authorized nominating authority....................................................................................5
Obtaining ANA’s required adjudication application form..............................................................6
Application for the adjudication......................................................................................................9
Dirt Diggler submissions...............................................................................................................11
Why dirt Digger is entitled to be paid the amount it is claiming...............................................11
Crook Constructions is not entitled to deduct the amounts it has deducted..............................13
References......................................................................................................................................15
APPENDIX....................................................................................................................................18
Adjudication application form...................................................................................................18

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Advice on Making an Adjudication Application
To offer appropriate and reliable advice to Dirt Diggler, it is essential to consider some of the
very significant issues relating to the adjudication application. First and foremost, it is in order
for dirt Diggler to make a claim, bearing in mind that as a subcontractor who was undertaking
the project, the contractor failed to honor the initially installed agreement. However, the
description notes that after receiving the contract form, Dirt Diggler failed to sign it and remit it
back, a matter which calls for a lot of wisdom to resolve, but either, Mark has to make a claim.
Additionally, there are time limits which guide when to make the adjudications applications.
These factors we shall consider in the following section1
Issue
The concern is that after crook pty limited has successfully secured a tender dealing in
excavations and construction works, it contacted dirt Diggler, a subcontractor to
undertake the work on its behalf following the latter being the lowest bidder. The initial
cost of the work was $660, 000 as per the agreed contract (but not signed by the
subcontractor). The dirt digger company then commences the task, providing claim
responses as well as the progress report om every 15th of the month. However, barely
three months after commencing the task, crook pty limited decides to scrap part of the
task but does not provide the sub-contractor with a substantive response or notice on why
not to proceed.
The subcontractor in that situation gets widely affected as the tasks was the one which
would earn him a great profit, and he had prepared much for it, procuring the various
necessary equipment as well as labor. It later turns out that the contractor had engaged
1 Achieva Technology Sdn Bhd v Lam Yen Ling [2019] 8 MLJ 625 (High court of Malaya).

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another earthmoving company to undertake the task. Mark then proceeds with the task,
and upon completion, makes a payment claim of $250, 000 less, as it had already been
paid in the previous progress claims. However, the contractor- crook pty limited hands a -
$900,000 in return, claiming that Dirt Diggler actions had costed them into liquated
damages of that amount. At this juncture, Mark is left with nothing but to file for an
adjudication application.
Three deadline schedules shall, therefore, guide the time or period of application of the
adjudication.
i. When one received payment, which had been agreed upon, however, the amount is less in
cash, the recipient shall be entitled to a maximum of ten business days from the day that
the amount was first released to file for an adjudication application. Section 17, 3c offers
provisions for this2
ii. The second scenario is when one receives the full amount which that had been agreed
upon, but then a dispute arises thereof, section 17, 3, b thus allows the recipient a
maximum of 20 business days to file for an application of adjudication3
iii. The last scenario is when a person upon completion of the work, does not receive the full
amount which had been agreed upon, the affected party in such a case has a maximum of
twenty business days to issue a notice of intention to apply for adjudication as guided by
the provisions sections 17, 3, a; . The respondent will then have a maximum period of
2 Ambulance Victoria, Submission No 208 to Law Reform, Road and Community Safety Committee, Parliament of
Victoria, Inquiry into Drug Law Reform (24 March 2017).
3 Andrew Edgar, ‘Administrative Regulation-Making: Contrasting Parliamentary and
Deliberative Legitimacy’ (2017) 40(3) Melbourne University Law Review 738, 747–9.

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five business days to issue a response, failure to which, the claimant shall be entitled a
maximum period of ten business days from the expiry of the notice of intention to apply
for adjudication4.
In the standoff between dirt digger and the crook constructions company, the third schedule shall
apply, upon which failure to receive a response from crook pty company, the Dirt Diggler shall
engage an authorized nominating authority in the intentions of filling for adjudication.
Finding an authorized nominating authority
As shall be stated in the various sections of this document, the major tasks of the ANA are to link
the claimant with an authorized adjudicator in attempts to finding justice. The claimant is the
ones responsible for selecting the authorized nominating authority upon scrutiny of the various
contractual terms. The major issue being the fee payable. In most cases, the ANA would just
charge the total fees for the application at once, and the ANA has to consider whether he has got
the ability to settle the amount5.
Further, the ANA, after being selected, has the duty of creating awareness of the involved parties
on what is required of them. Prior to securing an authorized nominating authority, the Dirt
Diggler will report to the VBA, upon the legal advice from the ANA. Under the SOP act, the
selected ANA shall contact any of the adjudicators. Of important note is that most of the
complaint shall be reported to the VBA, and the complains can emanate from the ANA, on
4 Anonymous 489, Submission to Royal Commission into Family Violence (29 May 2015).
5 AP Simester, ‘Accessory Liability and Common Unlawful Purposes’ (2017) 133 (January) Law Quarterly Review 73.
Australian Institute of Company Directors, Submission No 119 to senatestanding Committees on Economics, Parliament
of Australia, The Performance of the Australian Securities and Investments Commission (21 October 2013) 2.

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grounds of the unsatisfied decision by the adjudicators6.
There are situations when the parties involved have kept the issues less sophisticated, thus, the
ANA charges them minimized the amount of fee. In such a circumstance, they shall provide all
the relevant documents in time to the ANA and simplifying the process. On the side of the
adjudicators, they might charge based on the number of times they attend the site or on an
hourly basis. Further, they have the powers of keeping the final decision secret until all pending
amounts are settled. Additionally, cases where one party fails to settle the payable fees, the
other party might decide to pay the full fee so that the decision is availed by the adjudicators.
Obtaining ANA’s required adjudication application form
There are a number of authorized nominating authorities in Australia, who are
responsible for undertaking various activities in relation to linking the claimants to the
adjudicator. Some of the ANA include Adjudicate Today Pty Ltd, Royal Institution of
Chartered Surveyors Dispute Resolution Service (RICS DRS), Expert Adjudication, Australian
Solutions Centre Pty Ltd, Resolution Institute (formerly known as LEADR & IAMA), Master
Builders Association of New South Wales Pty Ltd, and Australian Building & Construction
Dispute Resolution Service7.
The claimant cannot just hire any ANA, but then has to consider some
fundamental factors such as the previous historical record of the ANA, the terms and
conditions of the ANA, the fees payable to the ANA, among other factors. Dirt digger
will thus consider these issues before making a decision to settle on a certain ANA.
6 Criminal Bar Association, Submission to Law Reform Committee, Parliament of Victoria, Inquiry into Forensic
Sampling and DNA Databases in Criminal Investigations (2017) 133 (January) Law Quarterly Review 73.
7 David Bamford and Mark Rankin, Principles of Civil Litigation (Lawbook, 2nd ed, 2014).

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Ordinarily, the primary duty of the ANA is to help in linking the claimant’s pledges
to the adjudicators. The adjudicators on the other side are appointed by a regulatory
body to undertake their duty8.
The claimant, in our case- Dirt Diggler, will first consider the various terms of
work of the various ANA, and then formulate his own terms and conditions of the
activity. Thereof, he would distribute to various ANA and then select one that suites
him upon receiving a number of responses. After selection of the ANA, dirt digger
would then proceed, under the guidance of the ANA to fill or apply for the
adjudication form. There are various issues which the adjudication from shall entail
and will be discussed in the below sections9.
There are various issues which the claimant when filling the adjudication
application form shall fulfill10. Among the issues, the most important factor will be to
ensure that the information filled is very correct and any relevant information is not
left outside. The form should not contain any errors nor corrections after it has been
filled. When the ANA has received the duly filled form from the claimant, the ANA
will then be in a position to issue the adjudicators who shall be appointed to act upon
8 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Judgment) (International Court of
Justice, General List No 133, 13 July 2012) [34].
9 Family Court of Australia, ‘Response of the Family Court of Australia to the Attorney-General’s Department Paper on
Primary Dispute Resolution Services in Family Law’ (2016).
10 The potential financial consequences were outlined in Investor–State Dispute Settlement: Review of Developments in
2016 (‘ISDS 2016 Review’).

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the matter with a “service of notice adjudication” 11. The adjudicators will then have a
maximum period of seven business days to issue a response to the matter. If in case
the claimant does not receive any positive response from the adjudicators within the
period of seven business days, the process shall be called off, and then the process of
obtaining the adjudicator shall be re-done, and the claimant shall choose another
ANA.
However, if all goes well without any hitches and the claimant receives a
response of acceptance of the adjudication plea, in this situation, both the parties
involved; that is the claimant and the responded shall have the chance of coming
together and then agreeing on a certain adjudicator. It is when the claimant shall fully
complete the adjudication form as well as making a formal presentation before the
adjudication nominating body12.
Some of the various significant activities which shall be ensured by the
claimant include. Ensuring that the ANA who has been selected; has all the details of
the claimant including the contacts and addresses; the past historical records of the
company, legal documents such as a police account in relation to the claim in the
construction thereof, details of the respondent including the contacts and the
locations addresses as well as its past historical records 13. Finally, an illustration on the
11 Gordon Goldberg, ‘Certain Contemporary Confusions Concerning Consideration, a Common Count and Conversion’
(2010) 8(2) Restitution Law Review 189, 189.
12 The potential financial consequences were outlined in Investor–State Dispute Settlement: Review of Developments in
2016 (‘ISDS 2016 Review’).
13 Human Rights Law Resource Centre, Submission No 21 to Senate Standing Committees on Legal and Constitutional Affairs,
Parliament of Australia, Inquiry into the Anti-Terrorism Laws Reform Bill 2009 (11 September 2013) 3 [6].

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eligibility of the data which has been tabled by the claimant. This will be essential in securing
the trust of the adjudicators. The validations shall be in the form of signed documents,
receipts, previously paid claims among other previously documented and useful items.
To strengthen the details of the adjudication document, the claimant is supposed to
provide the previous issues raised and how they were responded to, the previous claims, as
well as other reliable documented items which are characterized with a high level of integrity.
Additionally, there might be an informer, who might be interested in the matter before the
adjudication. The claimant has to ensure that the details of such a person, including the email
and contact addresses, location, background among others are provided14.
Application for the adjudication
After the claimant has received the adjudication form from the selected ANA, he will have to
ensure that the following documents are availed, some by the ANA, while others himself. They
include:15
A request form of nomination by an adjudicator, documented time limits, a copy to the
respondent, application fee by the ANA, a copy of the payment claim/ project schedule/ as well
as the contract. Also, any information deemed relevant as per the ANA advice shall be attached.
After submitting the adjudication form as well as the attached documents, the claimant shall wait
for a maximum period of seven business days, upon which failure to receive a notice from the
Law Institute of Victoria, Legal Directory 2006 (2005).
14 The potential financial consequences were outlined in Investor–State Dispute Settlement: Review of Developments in
2016 (‘ISDS 2016 Review’).
15 Law Reform Committee, Parliament of Victoria, Inquiry into Alternative Dispute Resolution and Restorative Justice (Final
Report, May 2015) 26.

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adjudicators, shall withdraw the ANA, and then make a fresh application within five business
days16. The involved parties might engage in a dispute resolution process outside the adjudication
within ten days after lodging the dispute. Once the ten business have elapsed without any formal
agreement, either of the party will be liable to refer the issue to the mediation process, as per the
third section, the clause 29(a)17.
Some of the evidence in support of the claim which shall be provided by the claimant
shall include the date of payment, the claimed amount, the number of and references of the
payment claims, the duration of payment by the respondent, as well as the date for making the
claim18.
The adjudication form is attached in the appendix section below;
Dirt Diggler submissions
The submissions which are offering support to the adjudication application are made in two
sections as detailed below
Why dirt Digger is entitled to be paid the amount it is claiming
It is no doubt that Dirt Diggler has to be paid the amount which is requesting for in full. There
are various factors which clearly give strength to the matter. Before starting to undertake any
activity, there is a binding legal document or rather known as the contract which details the terms
16 The potential financial consequences were outlined in Investor–State Dispute Settlement: Review of Developments in
2016 (‘ISDS 2016 Review’).
17 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2014]
ICJ Rep 136.
18 Maritime Dispute (Peru v Chile) (Judgment) [2014] ICJ Rep 4 C Legislation

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and conditions of the task19. The two parties; Dirt Diggler and crook limited company did make a
legally binding agreement on the terms of the work as well as the payment. When a contractor
fails to honor the agreement by failing to pay some amount which had been agreed upon, it
becomes a breach of contract, and in such a case, he would remain the liable person. Dirt Diggler
did his part by conducting the task as had been agreed upon prior to commencing the work and is
therefore entitled to the full amount.
Also, among the issues raised, barely after some few months of beginning the construction
works, the contractor terminated a section of the activities which the sub-contractor- Dirt Diggler
has been scheduled20. This resulted in a great loss to the latter as it was one sector where he
would gain most of the profit. Further, he had secured the appropriate equipment’s for the task as
well as the laborer’s, and this greatly affected the Dirt Diggler company. Of surprise is that
another earthmoving company had been contracted the task amid lack of proper communication
to the Dirt Diggler21. Evidently, the termination was quite informal and there was no written
record or evidence or notice to indicate the same. This simply implies that the contractor did
breach the terms of the contract unless it would have issued a notice in writing22. Dirt Diggler is
thus entitled to be paid the amount it is claiming for.
19 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 2017 UNTS 3
20 RN Gooderson, ‘Claim of Right and Dispute of Title’ (Pt 1) [2017] (1) Cambridge Law Journal 90.
21 Martin Davies and Ian Malkin, Torts (lexisnexis Butterworths, 5th ed,2018).
22 Michelle Foster, Jane mcadam and Davina Wadley, ‘The Protection of Stateless Persons in Australian Law: The Rationale
for the Statelessness Determination Procedure’ (Pt 1) (2016) 40(2) Melbourne University Law Review 401

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To add on the points raised, the contractor failed to provide a concrete and justifiable reason as to
why the construction task had to be stopped on top of the lack of formal notice23. The timelines
in which the contractors also made the terminations are questionable and unacceptable, and thus
placing the contractor company on the losing end. The adjudicators are thus at the discretion of
ensuring that the claimant gets the full amount which it is claiming for.
The previous binding contract, which guided the whole of the construction dictated that the
amount was to be paid in full upon completion. Failing to pay this amount after Dirt Diggler had
done with the construction works implies a serious breach of contract, and in no case should they
be on the positive side of justice. The claimant is absolutely entitled the full amount it is
adjudicating for.
While suspending the earthworks excavations, the contractor did not issue any notice in writing.
However, the terms indicate that should a termination default be made by the contractor, the
principle is in authority suspend any payments which might be claimed thereof, but in writing;
till the issue is fully resolved24. After the task of construction had been completed, the
expectation is that a certificate is issued by the superintendent on the cost incurred by the
subcontractor while undertaking the activity, but not disputes25. So far, there is no certificate of
completion issued which might guide the case on the side of the respondent and thus left for the
option of the claimant getting the full amount.
23 Poire v CL Peck/Jones Brothers Construction Corporation Inc, 46 Cal Rptr 2d 631 (Ct App, 2015).
24 Mobil Oil Australia, Submission No 25 to Australian Competition and Consumer Commission, Inquiry into the Price of
Unleaded Petrol (27 July 2011) 6–7.
25 Philip Loots and Donald Charrett, Practical Guide to Engineering and Construction Contracts (CCH Australia, 2019

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Crook Constructions is not entitled to deduct the amounts it has deducted.
When crook rook constructions terminated a section of the contract, it did not issue any notices
or follow any legal procedure. It only notified the subcontractor without any formal discussion.
The intention would later come out that it had found another earthmoving company which would
conduct the task instead of the contracted company. Thus, such a case stipulates that the person
who has breached the contract is liable to the damages caused, and the crook company is not
supposed to deduct the sub-contractor the charges.
The sub-contractor was not prepared for incurring the loses which the contractor failed to
prevent, by carelessly terminating part of the contract. It came when the Dirt Diggler company
had already purchased the equipment and was fully prepared to undertake the duty, hence
running into significant loses. Further, without any solid reason, the contractor could not even
issue a written notice. Thus, it implies that he is not entitled to deducting any amount from the
contractor.
The contractor also did not follow any legal procedure while making the terminations or while
issuing the final payable amount. The amount issues, being a negative and pointed on the
liquidated damages on the company as well could not be validated, hence, eliminating
possibilities of deductions by the crook company.
Malice can also be sensed in the case that the contract sum, which was $ 660, 000 is less than the
amount charged by the contractor in the form of liquidated damages. In such, no case should that
occur, and thus, it will be improper if the crook company makes any deductions.

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References
Achieva Technology Sdn Bhd v Lam Yen Ling [2019] 8 MLJ 625 (High court of Malaya).
Ambulance Victoria, Submission No 208 to Law Reform, Road and Community Safety
Committee, Parliament of Victoria, Inquiry into Drug Law Reform (24 March 2017).
Andrew Edgar, ‘Administrative Regulation-Making: Contrasting
Parliamentary and Deliberative Legitimacy’ (2017) 40(3) Melbourne University Law
Review 738, 747–9.
Anonymous 489, Submission to Royal Commission into Family Violence (29 May 2015).
AP Simester, ‘Accessory Liability and Common Unlawful Purposes’ (2017) 133 (January)
Law Quarterly Review 73.
Australian Institute of Company Directors, Submission No 119 to senatestanding Committees
on Economics, Parliament of Australia, The Performance of the Australian Securities and
Investments Commission (21 October 2013) 2.
Criminal Bar Association, Submission to Law Reform Committee, Parliament of
Victoria, Inquiry into Forensic Sampling and DNA Databases in Criminal Investigations
(2017) 133 (January) Law Quarterly Review 73.
David Bamford and Mark Rankin, Principles of Civil Litigation (Lawbook, 2nd ed, 2014).
Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua)
(Judgment) (International Court of Justice, General List No 133, 13 July 2012) [34].
Family Court of Australia, ‘Response of the Family Court of Australia to the Attorney-
General’s Department Paper on Primary Dispute Resolution Services in Family Law’ (2016).
Gordon Goldberg, ‘Certain Contemporary Confusions Concerning Consideration, a
Common Count and Conversion’ (2010) 8(2) Restitution Law Review 189, 189.

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Human Rights Law Resource Centre, Submission No 21 to Senate Standing Committees on
Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Anti-Terrorism
Laws Reform Bill 2009 (11 September 2013) 3 [6].
Law Institute of Victoria, Legal Directory 2006 (2005).
Law Reform Committee, Parliament of Victoria, Inquiry into Alternative Dispute Resolution
and Restorative Justice (Final Report, May 2015) 26.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Advisory Opinion) [2014] ICJ Rep 136.
Maritime Dispute (Peru v Chile) (Judgment) [2014] ICJ Rep 4 C Legislation
Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15
April 2017 UNTS 3
Martin Davies and Ian Malkin, Torts (lexisnexis Butterworths, 5th ed,2018).
Michelle Foster, Jane mcadam and Davina Wadley, ‘The Protection of Stateless Persons in
Australian Law: The Rationale for the Statelessness Determination Procedure’ (Pt 1) (2016)
40(2) Melbourne University Law Review 401
Mobil Oil Australia, Submission No 25 to Australian Competition and Consumer
Commission, Inquiry into the Price of Unleaded Petrol (27 July 2011) 6–7.
Philip Loots and Donald Charrett, Practical Guide to Engineering and Construction
Contracts (CCH Australia, 2019)
Poire v CL Peck/Jones Brothers Construction Corporation Inc, 46 Cal Rptr 2d 631 (Ct App,
2015).
RN Gooderson, ‘Claim of Right and Dispute of Title’ (Pt 1) [2017] (1) Cambridge Law
Journal 90.

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The potential financial consequences were outlined in Investor–State Dispute Settlement:
Review of Developments in 2016 (‘ISDS 2016 Review’).

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APPENDIX
Adjudication application form

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