This page explains how to make an adjudication application under the Building Industry Fairness (Security of Payment) Act 2017 (Qld).
The Act provides a streamlined process that allows a claimant to recover a disputed or unpaid progress payment. For payment claims made before 17 December 2018, the adjudication process set out in the Building and Construction Industry Payments Act 2004 (Qld) will apply. You can read more about that here. This article focuses on adjudication applications in respect of payment claims made after 17 December 2018.
If you aren’t sure how to make an adjudication application under the Act, we suggest the following approach
- Find out when (and how) your application needs to be lodged
- Check the Act to see what should be included in your adjudication application.
- If you think you might need it, get help straight away.
- Prepare your application and submissions, and gather evidence dealing with the substance of the claim.
- Serve the application by the deadline.
Each of these steps is explained in more detail below.
1. When can an adjudication application be made?
There are strict timelines for when an adjudication application can be made. When your adjudication application needs to be lodged is determined by section 79 of the Act. The deadline for submitting your application will differ depending on the circumstances. The Act provides for three possible scenarios:
- If you did not receive a payment schedule and full payment of the amount in the payment claim was not made, you have 30 business days after the later of:
- the due date for the progress payment to which the payment claim relates; and
- the last day the respondent could have given the payment schedule. This is the earlier of the expiry of the period stated in the contract for which the respondent must give a payment schedule or 15 business days after the payment claim was made.
- If the respondent did not pay the full amount stated in the payment schedule, you have 20 business days after the due date for the progress payment to which the payment claim relates.
- If the amount stated in the payment schedule is less than the amount stated in the payment claim, you have 30 business days from the date you received the payment schedule to make the application.
Once you have determined when your application is due, you will need to consider how to make your application with The Queensland Building and Construction Commission (QBCC).
You can read more about the process here.
2. Check the Act to see what should be included in your adjudication application.
Your adjudication application must:
- be in writing;
- be in the approved form;
- be made out to the QBCC;
- identify the payment claim and the payment schedule to which it relates; and
- be accompanied by an application fee (in addition to the adjudicator’s fee).
The application should include a copy of the contract, the payment claim and the payment schedule (if one was received). You may also include any submissions relevant to the application. If your claim is $25,000 (incl GST) or less, your submissions cannot be more than 10 pages but may include supporting documents that are referred to in your submission. There are no page limit restrictions on submissions for claims over $25,000 (incl GST).
There are two ways you can lodge your application:
- online, via your ‘myQBCC’ account, using the online form. You can upload your submissions and all supporting documents; or
- in person or by post. You must download and complete the adjudication application form and lodge it in person at a QBCC Service Centre or by post or fax. You can find a list of Service Centres here.
Make sure your application is delivered before 5pm (AEST) on or before the due date, which must be a business day. Any applications lodged after 5pm (AEST) are taken to have been delivered the next business day.
Once you have lodged your application with the QBCC, the Registrar of the QBCC must refer your application to an adjudicator within four business days of receiving your application (see section 79(4)).
3. If you think you might need it, get help straight away.
If you think you might need assistance preparing your adjudication application, it’s critical that you seek help as early as you can. Some parts of the Act are highly technical, and an experienced construction lawyer will be able to help you work through the issues. (You can contact us here.)
No matter how good they are, a lawyer will not be able to achieve much if they only receive instructions a short time before your application is due.
4. Prepare the submissions and gather evidence dealing with the substance of the claim.
Once you understand what can be included in your adjudication application, it is time to start putting the application together, including the supporting documentation.
Adjudication applications can sometimes be lengthy documents (although keep in mind the restrictions on length specified above if your claim is $25,000 (incl GST) or less). It is not sufficient for the claimant to rely solely on the payment claim and state that they are entitled to payment.
Usually, an adjudication application would include:
- submissions to the effect that the work was done and/or related goods and services were supplied as required under the contract;
- a copy of the contract, or if the contract was agreed verbally, submissions with the terms of the oral agreement, and any emails or correspondence supporting this;
- submissions indicating the nature and extent of the work carried out (including any rectification or defects work);
- submissions clearly setting out calculations of the total amount claimed, with itemised works and the total;
- witness statements, expert reports, test results, photographs, invoices, statutory declarations, or other documentation or correspondence that supports the claim, attached as numbered documents; and
- legal submissions which support the claim.
5. Serve your adjudication application by the deadline.
Once your application is finalised, make sure you lodge it before the deadline.
You must also serve a copy of your application and supporting documents on the respondent in accordance with section 79(3) of the Act. You should do so as soon as possible after you have delivered your application to the QBCC.
Need help preparing an adjudication application? Click here.
