THE RESPONSE TO THE ADJUDICATION CLAIM

A respondent and any owner who is a party to the proceedings may serve on the adjudicator a written response to the adjudication claim within 5 working days after receiving the claim or within any further time that the parties to the adjudication agree, or that the adjudicator may allow if the adjudicator considers that, in the circumstances, the additional time is reasonably required to allow the respondent to complete the written response (s37(1)). The presumption is strongly against an extension of time being granted by an Adjudicator. A respondent or owner must serve any such response on the claimant and any other party to the adjudication either before, or immediately after serving the response on the adjudicator.

Compliance with the time limits in section 37(1) of the Act is absolutely essential. Under section 46(1)(b) of the Act, an adjudicator is prohibited from taking into account in making a determination, any response, unless it was served in time.

First impressions may lead one to conclude that the timeframe for the response is unduly and unreasonably harsh. However, if discussions, communications and/or negotiations have been properly conducted as required under the act so as to establish ‘the dispute’, the respondent will be well aware of its reasons for non-payment or disagreement as to the parties’ rights and obligations and will have already articulated those to the claimant in a payment schedule and/or any subsequent communications. Therefore it is simply a matter of the respondent presenting those reasons and the supporting material for the adjudicator. Nothing more, new, or different is required of the respondent, nor can it be, as any new matters not previously canvassed by the parties cannot be considered in the adjudication.

As with the adjudication claim, the written response may be accompanied by any other documents (evidence) that the respondent wishes to rely upon in support of its response to the claim. As with the claim, there may also be no other opportunity for the respondent or owner to present their case to the adjudicator and therefore it is important that the respondent and owner include with their responses, all evidence, documents and other material that it seeks to rely on in support of its opposition to the claim, within the 5 working days that it is entitled to, or such other time as may be agreed by the parties, or allowed by the adjudicator.

The adjudication response is not an opportunity for the respondent to make a counterclaim. A respondent may claim set-off or abatement in the written response to the extent of extinguishing the adjudication claim, but if the respondent believes it is entitled to be paid money by the claimant, then the respondent must file its own adjudication claim to recover those monies. The abatement or set-off must have been raised by the respondent as a reason for non-payment of the claimed amount prior to the adjudication, such that the claimant has had an opportunity of considering, modifying or rejecting the abatement or set-off and a dispute crystallised in relation to those matters.

If two or more adjudication proceedings are pending, an adjudicator may, with the written consent of all of the parties to those adjudication proceedings, consolidate the proceedings and determine the adjudication claims at the same time. Inevitably what happens in those circumstances is that the parties agree that claim and counterclaim be heard concurrently, although it should be stressed, that even in those circumstances where often some creativity is required, strict compliance with the timeframes in sections 36 and 37 of the Act is essential.