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BIFA Refresher Part 5 – Adjudication Applications

Adjudication Application! While it may sound overwhelming it is usually considered a relatively quick and cheap form of dispute resolution which can be used an alternative to litigation through the court system.  The BIFA sets up the mechanisms which provides for an impartial and independent registered adjudicator to be appointed to decide the dispute through statutory adjudication.

So, what are the requirements to lodge an adjudication application? If you served a payment claim under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIFA) and you didn’t receive a valid payment schedule; you disagree with the amount the respondent has said it will pay you or you did not receive full payment (or at least the amount the respondent said it would pay) by the due date you have the option of proceeding to lodge an adjudication application.

In order to start the adjudication process you will need to lodge an application with the registrar appointed as part of the Queensland Building and Construction Commission (QBCC), who refers the adjudication to an adjudicator.

Only a claimant (the party serving a payment claim) can apply for an adjudication.  Strict time limits apply for commencing an adjudication application, which are either:

  1. 30 business day if:
    • the respondent did not serve a valid payment schedule and the due date for payment has passed without full payment of the claim, in which case the time starts on the latter of the day after the date the payment schedule was due or the day after the date payment was due; or
    • the claimant disagrees with the scheduled amount the respondent has stated on a valid payment schedule, in which case the time starts on the day after the date the payment schedule was received; or
  2. 20 business days if the respondent has provided a payment schedule but failed to pay the some or all of the scheduled amount by the due date for payment, in which case time starts on the day after the date payment was due.

An adjudication application:

  • Must be in the approved form (currently a Form S79 – ADJUDICATION APPLICATION available on the QBCC website). This form will request the business details of both parties such as their ABN/ACN details, contact names, and contact details for example telephone number, address and email.
  • Must identify the payment claim and payment schedule (if any) to which it relates.
  • Must be accompanied by the fee prescribed by regulation for the application, the amount of which is determined by the amount claimed (including GST) in the payment claim. The fees for making the application are outlined in Schedule 2 of the Building Industry Fairness (Security of Payment) Regulation 2018 (Qld) and currently range between $57.35 and $5,737.60.
  • Must attach a copy of the payment claim, any payment schedule and the construction contract.  If the construction contract is oral, or partially oral, a document defining the terms of the contract should be attached (this may be in the form of a witness statement or statutory declaration).
  • Should include evidence of how and when the payment claim was served, especially if there is no payment schedule.
  • May include any submissions relevant to the adjudication application on which the claimant chooses to rely. These submissions may provide details on matters such as:
    • the background of the project or other information about the relevant construction contract;
    • factual events on which the claimant relies;
    • an explanation of how the claimant arrived at certain valuations, including any identifying any relevant supporting documents attached; or
    • jurisdiction issues around the entitlement to commence the adjudication application.

If the adjudication application relates to a payment claim of less than $25,000, then these submissions must be less than 10 pages with specific requirements regarding the margin and font size.

  • May attach any other supporting evidence relevant to the construction contract or other documents that support the payment claim and the amount claimed, such as statutory declarations, timesheets, diary notes, correspondence, and supplier invoices.

The complete adjudication application, including all submissions and attached documents, must be lodged on the QBCC. As the QBCC deem any application made after 5:00 pm to have been made on the next business day, it is important to ensure you allow enough time to lodge before 5:00 pm on the due date.

An adjudication application can be lodged online through myQBCC but file size limits apply (currently around 10MBs).

The claimant will also need to serve an exact copy of the adjudication application on the respondent.

Keep an eye out for our next article where we will discuss the process once an adjudication application has been lodged, including adjudication responses, in more detail.

If you have any concerns about your obligations in relation to BIFA, or your options for recovering payment under BIFA, feel free to contact us to get in touch.

The content of this blog article is intended to provide general information as a summary of the subject matter, which is current at the time of publication. It is intended for information purposes only and should not be regarded as advice. Specialist advice should be obtained about your specific circumstances before taking action on any issue dealt with in this publication.