Able Adjudication

In most states if a Respondent fails to serve a payment schedule and fails to pay the whole or any part of the claimed amount by the due date for payment of the claimed amount then the Claimant may make a Security of Payment adjudication application based on the Payment Claim.

However before doing so the Claimant must give the Respondent a second chance to provide a Payment Schedule by serving a notice on the Respondent.  This notice is often referred to as a:

• s21(2) notice in QLD
• s17(2) notice in NSW
• s19(2) notice in ACT
• s21(4) notice in TAS
• s17(2) notice in SA

The notice is to be served on and received by the Respondent within 20 business days after the Due Date for Payment in relation to the Payment Claim (not any invoices attached to the Payment Claim).

The notice must state that the Respondent has 5 business days from when he/she receives the notice to provide a Payment Schedule after which time the Claimant may proceed to lodge an Adjudication Application within a further specified timeframe (see note below).

It is good practice that the notice:

• refers to the Payment Claim, the claimed amount and when it was served on the Respondent; and
• states that a Payment Schedule was not received within 10 business days; and
• states that there is now an intention to proceed to adjudication; and
• states that the Respondent has an additional 5 business days to provide a Payment Schedule.
• attaches the Payment Claim to ensure the Respondent is aware of which Payment Claim the notice refers to.

It is also good practice to keep evidence of service such as facsimile receipt, registered post receipts and courier receipts etc so that you can demonstrate to the adjudicator when the Respondent received the document.

We have developed a proforma that covers all these points Click here to go to the Proforma Page;

Note:

Adjudication applications timeframes after a 2nd chance notice is served varies between the Acts and it is suggested you check the relevant legislation or seek guidance.  The following is provided as guidance only:

QLD, NSW, ACT and South Australia – within 10 business days after the end of the 2nd chance 5-day period.

Tasmania – within 15 business days after the end of the 2nd chance 5-day period.