Introduction: Subcontractor's guide to resolving payment disputes
This guide is intended to help you understand how to resolve contractual payment disputes using the Construction Contracts Act 2004 (the Act) and outlines the process for parties undertaking rapid adjudication and the rights and obligations of parties to contracts for building and construction work.
The information provided here is also available to download in the Subcontractor's guide to resolving payment disputes.
Section 1: The scenario
Section 2: What does the Act do?
Section 3: When does the Act apply?
Section 4: What is adjudication?
Section 5: How does it work?
Section 6: How do I start the process?
Section 7: What happens if my payment claim is disputed or not paid?
Section 8: Can I ‘recycle’ a disputed payment claim?
Section 9: How do I make an application for adjudication?
Section 10: What happens once I have made an application for adjudication?
Section 11: What does the adjudicator do?
Section 12: What happens if I don’t want to continue with adjudication or we reach a settlement?
Section 13: Effect of a determination
Section 14: What happens if I still don’t get paid?
Section 15: Can the adjudicator’s decision be appealed?
Section 16: Other frequently asked questions
The Building Commission recommends that you are fully aware of the terms of each contract you have for construction work, including any clauses covering how disputes are to be resolved. The Act works in addition to what is in your contract, and a contract cannot provide that the Act does not apply.
Where a payment dispute arises it is important that you act swiftly to resolve it. You can use the dispute processes in your contract, take action in the courts, or use the rapid adjudication process under the Act. The choice is yours, and you may want to get advice before deciding which process is best for you. This guide deals with the rapid adjudication process under the Act.
The Act applies to contracts for the carrying out of most types of construction work, except work specifically excluded from the operation of the Act. This includes:
- drilling for the purpose of discovering or extracting oil or natural gas, whether on land or not;
- constructing a shaft, pit or quarry, or drilling, for the purposes of discovering or extracting any mineral bearing or other substance; and
- fabricating or assembling items of plant for the purposes of extracting or processing oil, natural gas or any derivative of natural gas, or any mineral bearing or other substance.
You should consider the type of work carried out under your contract and whether it falls within any of the exclusions before proceeding with adjudication.
The Building Commission administers the Act, it does not have any role or powers to advise on individual contractual issues or resolve payment disputes. In this regard, you should seek independent legal advice.
Legal practitioners specialising in construction law and contractual disputes can be found through the Law Society of Western Australia’s ‘Find a Lawyer’ database at www.lawsocietywa.asn.au/find-a-lawyer.
Alternatively, registered adjudicators may help on payment disputes in which they are not involved. You can contact them directly through the details provided on the webpage 'Find an adjudicator'.
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