For construction contracts entered into before 1 December 2015
The Act provides that a party to a commercial construction contract seeking to recover the unpaid amount of an adjudicator’s determination may apply to the District Court to have the determination entered as a judgment.
A defendant is entitled to oppose the application for enforcement within 15 working days after the date on which the defendant is served with a copy of the application.
to view a summary flowchart of the enforcement process for construction contracts entered into before
1 December 2015.
For construction contracts entered into or renewed from 1 December 2015
A party to any construction contract entered into or renewed from 1 December 2015 may seek to recover the unpaid amount of an adjudicator’s determination, or to enforce an adjudicator’s determination in respect of rights and obligations under the contract, by applying to the District Court to have the determination entered as a judgment.
A defendant is entitled to oppose the application for enforcement within five working days after the date on which the defendant is served with a copy of the application.
To obtain entry of the adjudicator’s determination as a judgment, the steps in Subpart 2 of Part 4 of the Act need to be carefully followed. First, a party needs to make an application to the District Court in the manner provided by the District Court Rules and must serve the application on the defendant along with a statement setting out the consequences for the defendant if the defendant takes no steps in relation to the application.
Any application to oppose entry as a judgment by the Court may only be made if the defendant can establish:
- that the amount payable under the determination has been paid in full to the plaintiff;
- that the contract to which the determination relates is not a construction contract to which the Act applies; or
- that a condition imposed by the adjudicator in his or her determination has not been met.
If the defendant does not take any steps to oppose the entry of the determination as a judgment within the permitted time (either 15 or five working days), or the grounds for opposition do not fall into any of the above categories, the District Court must enter the determination as a judgment.
If the adjudicator has approved the issue of a charging order in respect of the construction site and the plaintiff has applied to the Court for the issue of a charging order, the Court must immediately issue a charging order in respect of the construction site if the adjudicator’s determination is entered as a judgment.
Once the determination is entered as a judgment, the plaintiff can then enforce the judgment in accordance with the District Court Rules by means of an order for financial assessment, attachment order, or a distress warrant. An order for financial assessment requires the debtor to appear before the Court Registrar to be examined as to the debtor’s financial situation to see if the debtor is able to pay the debt. If the Court determines that the debtor is able to pay, the Court will make an order for payment.
An attachment order directs the employer of the debtor to make deductions from the debtor’s wages or salary, or from benefits, and to pay the money directly to the creditor. The amount to be deducted will be decided by the Court after consideration of the circumstances.
A distress warrant permits a collections officer from the District Court to seize goods from the debtor to the value of the debt. These goods are generally held for five days and then sold with the proceeds being paid to the creditor, less the expenses incurred in the seizure and sale of the goods.
to view a summary flowchart of the enforcement process for construction contracts entered into from
1 December 2015.