Section 9: How do I make an application for adjudication?
Adjudication is a quick, cost effective alternative to going to court or arbitration. While there are specific rules that must be followed, you don’t need to be a legal expert.
An application for adjudication is either made to a nominated adjudicator, or to a prescribed appointor.
An application for adjudication can only be made directly to an adjudicator, where both parties have agreed either in the contract, or in a separate agreement.
If you have not agreed on a particular adjudicator, then the application must be made to one of the eight prescribed appointors in Western Australia.
Where there is no prior agreement on an adjudicator, the party commencing the adjudication (known as the “applicant”) is free to choose whichever appointor best suits their needs. A list of the appointors can be found on the Building Commission’s website.
An application for adjudication must be made in writing and contain certain information. This includes:
- the name of the appointed adjudicator or prescribed appointor and their contact details;
- the applicant’s name and contact details;
- the respondent’s name and contact details;
- the construction contract involved (or relevant extracts);
- the payment claim that has given rise to the dispute; and
- any information, documentation and submissions which will be relied upon in the adjudication.
The respondent is the party you are claiming owes you money (e.g. head contractor or principal).
The Building Commission has produced a form to assist you in preparing a response, which is available on the Building Commission’s website.
Once you have prepared your application, it must be served on both the respondent and the appointor. Again, remember the application needs to be served within 90 business days of the payment dispute arising.
Remember all time limits that apply under the Act are counted in business days. If you are responding to an application for adjudication you have 10 business days beginning from the business day after being served with the application.
Frequently asked questions
Does the adjudicator hold a hearing?
No. In most circumstances the adjudicator will make a decision based only on the paperwork provided. This is why it is important to ensure that you prepare proper submissions. However, the adjudicator may choose to hold a conference with the parties if the adjudicator requires further information.
What should I do if the client says “I am not going to adjudication, I’ll see you in court.”
Irrespective of whether the client is telling you they won’t participate, you should still continue with the adjudication. Under the Act, the adjudicator will still make a determination even where the respondent fails to provide a response. Once a determination has been made, it can be enforced as a court order.
What happens if the adjudicator dismisses the adjudication without making a determination?
Depending on the reason given for dismissing the adjudication, you may commence proceedings in the State Administrative Tribunal seeking a review of the adjudicator’s decision. Alternatively, you may decide to use another option for resolving the dispute, such as court action or arbitration. If the adjudicator does dismiss the application, you should seek professional advice to identify the best option for resolving the dispute.
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