PART 4 | ADJUDICATION OF PAYMENT CLAIM DISPUTES |
| Adjudication applications |
13.—(1) A claimant who is entitled to make an adjudication application under section 12 may, subject to this section, apply for the adjudication of a payment claim dispute by lodging the adjudication application with an authorised nominating body.| (2) An adjudication application must not be made unless the claimant has, by written notice containing the prescribed particulars, notified the respondent of the claimant’s intention to apply for adjudication of the payment claim dispute. |
(3) An adjudication application —| (a) | must be made within 7 days after the entitlement of the claimant to make an adjudication application first arises under section 12; | | (b) | must be made in writing addressed to the authorised nominating body requesting it to appoint an adjudicator; | | (c) | must contain such information or be accompanied by such documents as may be prescribed; | | (d) | must be accompanied by such application fee as may be determined by the authorised nominating body; and | | (e) | may contain or be accompanied by such other information or documents (including expert reports, photographs, correspondences and submissions) as the claimant may consider to be relevant to the application. |
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(4) The authorised nominating body must, upon receiving an adjudication application —| (a) | serve a copy thereof on the respondent; and | | (b) | serve on the principal (if known) and the owner concerned a written notice that the application has been made. |
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| (5) The notice mentioned in subsection (4)(b) must contain such particulars as may be prescribed. |
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| Appointment of adjudicator |
14.—(1) The authorised nominating body must, upon receiving an adjudication application, refer the adjudication application to a person who is on the register of adjudicators established under section 28(4)(a) and whom the authorised nominating body considers to be appropriate for appointment as the adjudicator to determine the adjudication application.| (2) The person to whom the adjudication application has been referred under subsection (1) may agree or decline to determine the adjudication application. |
| (3) The authorised nominating body must, within 7 days after receiving the adjudication application, serve a written notice confirming the appointment of an adjudicator on the claimant, the respondent, the principal (if known) and the owner concerned. |
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| Appointment of replacement adjudicator |
14A.—(1) Where an authorised nominating body becomes aware that —| (a) | an adjudicator appointed under section 14 has ceased to meet the eligibility criteria for adjudicators under section 29; or | | (b) | the adjudicator has become unable to perform the adjudicator’s duties for any reason, |
| the authorised nominating body must refer the adjudication application to a person who is on the register of adjudicators established under section 28(4)(a) and whom the authorised nominating body considers to be appropriate for appointment as the replacement adjudicator to determine the adjudication application. |
[47/2018] | (2) The person to whom the adjudication application has been referred under subsection (1) may agree or decline to determine the adjudication application. [47/2018] |
| (3) The authorised nominating body must, within 7 days after becoming aware of the matters in subsection (1)(a) or (b) (as the case may be) serve on the claimant, the respondent, the principal (if known) and the owner concerned a written notice confirming the appointment of the person who has agreed to determine the adjudication application referred to the person under subsection (1) as the replacement adjudicator. [47/2018] |
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15.—(1) A respondent must, within 7 days after receiving a copy of an adjudication application under section 13(4)(a), lodge with the authorised nominating body a response to the adjudication application.(2) The adjudication response —| (a) | must be made in writing addressed to the authorised nominating body; | | (b) | must identify the adjudication application to which it relates; | | (c) | must contain such information or be accompanied by such documents as may be prescribed; and | | (d) | may contain or be accompanied by such other information or documents (including expert reports, photographs, correspondences and submissions) as the respondent may consider to be relevant to the adjudication response. |
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(3) Subject to subsection (4), the respondent must not include in the adjudication response an objection of any nature, unless —| (a) | where the adjudication relates to a construction contract — that objection was included in the relevant payment response provided by the respondent to the claimant; or | | (b) | where the adjudication relates to a supply contract — that objection was raised by the respondent to the claimant in writing on or before the relevant due date. [47/2018] |
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(4) Despite subsection (3), the respondent may include in the adjudication response an objection mentioned in subsection (3) if —| (a) | in the case of an adjudication that relates to a construction contract —| (i) | the circumstances of that objection only arose after the respondent provided the relevant payment response to the claimant; or | | (ii) | the respondent could not reasonably have known of the circumstances when providing the relevant payment response to the claimant; or |
| | (b) | in the case of an adjudication that relates to a supply contract —| (i) | the circumstances of that objection only arose after the relevant due date; or | | (ii) | the respondent could not reasonably have known of the circumstances by the relevant due date. [47/2018] |
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(5) The authorised nominating body must, upon receiving an adjudication response —| (a) | serve a copy thereof on the claimant; and | | (b) | serve on the principal (if known) and the owner concerned a written notice that the adjudication response has been lodged. |
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| (6) The notice mentioned in subsection (5)(b) must contain such particulars as may be prescribed. |
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| Commencement of adjudication and adjudication procedures |
16.—(1) An adjudication commences immediately upon the expiry of the period mentioned in section 15(1) within which the respondent may lodge an adjudication response.| (2) If an adjudicator is appointed under section 14A(3), a new adjudication commences as if the adjudication under subsection (1) had not commenced, immediately upon expiry of the period mentioned in section 14A(3) within which the notice confirming the adjudicator’s appointment must be served. [47/2018] |
(3) Subject to subsection (4), an adjudicator must reject —| (a) | any adjudication application that is not made in accordance with section 13(3)(a), (b) or (c); and | | (b) | any adjudication response that is not lodged within the period referred to in section 15(1). [47/2018] |
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| (4) Despite subsection (3), an adjudicator may accept any adjudication application that is not made in accordance with section 13(3)(c) if the adjudicator is satisfied that the non‑compliance does not materially prejudice the respondent. [47/2018] |
(5) An adjudicator must —| (a) | act independently, impartially and in a timely manner; | | (b) | avoid incurring unnecessary expense; and | | (c) | comply with the principles of natural justice. |
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(6) Subject to subsection (5), an adjudicator may do all or any of the following in relation to an adjudication:| (a) | conduct the adjudication in such manner as the adjudicator thinks fit; | | (b) | require submissions or documents from any party to the adjudication; | | (c) | set deadlines for the submissions or documents to be provided by any party and for the submissions or responses thereto by any other party; | | (d) | appoint, after notifying the parties, an independent expert to inquire and report on specific issues relevant to the adjudication; | | (e) | call a conference of the parties; | | (f) | carry out an inspection of any construction work, construction site, goods or any other matter to which the adjudication relates; | | (g) | issue such directions as may be necessary or expedient for the conduct of the adjudication. |
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| (7) Where an adjudicator has called for a conference of the parties to an adjudication, a party to the adjudication must not be represented by more than 2 representatives (whether legally qualified or otherwise) unless the adjudicator permits otherwise. |
| (8) The parties to an adjudication must comply with any requirement made or direction issued by the adjudicator in accordance with this section. |
(9) An adjudicator’s power to determine an adjudication application is not affected by the failure of —| (a) | the respondent to provide a payment response or lodge an adjudication response; or | | (b) | any of the parties to comply with the adjudicator’s call for a conference of the parties or any other requirement made or direction issued by the adjudicator, |
| and in the event of any such failure, the adjudicator may determine the application on the basis of the information and documents available to the adjudicator. |
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| (10) The determination of an adjudicator on any adjudication application must be in writing. |
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| Determination of adjudicator |
17.—(1) An adjudicator must determine an adjudication application —| (a) | within 7 days after the commencement of the adjudication under section 16(1) or (2) (as the case may be) or within such longer period as may have been requested by the adjudicator and agreed to by the claimant and the respondent, if the adjudication relates to a construction contract and the respondent —| (i) | has failed to make a payment response and to lodge an adjudication response by the commencement of the adjudication; or | | (ii) | has failed to pay the response amount, which has been accepted by the claimant, by the due date; or |
| | (b) | in any other case, within 14 days after the commencement of the adjudication under section 16(1) or (2) (as the case may be) or within such longer period as may have been requested by the adjudicator and agreed to by the claimant and the respondent. [47/2018] |
(2) An adjudicator must, in relation to an adjudication application, determine —| (a) | the adjudicated amount (if any) to be paid by the respondent to the claimant; | | (b) | the date on which the adjudicated amount is payable; | | (c) | the interest payable on the adjudicated amount; and | | (d) | the proportion of the costs of the adjudication payable by each party to the adjudication, |
| and must include, in the determination, the reasons therefor. |
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(3) In determining an adjudication application, an adjudicator must disregard any part of a payment claim or a payment response related to damage, loss or expense that is not supported by —| (a) | any document showing agreement between the claimant and the respondent on the quantum of that part of the payment claim or the payment response; or | | (b) | any certificate or other document that is required to be issued under the contract. [47/2018] |
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(4) Subject to subsection (5), in determining an adjudication application, an adjudicator may only have regard to the following matters:| (a) | the provisions of this Act; | | (b) | the provisions of the contract to which the adjudication application relates; | | (c) | the payment claim to which the adjudication application relates, the adjudication application, and the accompanying documents thereto; | | (d) | the payment response to which the adjudication application relates (if any), the adjudication response (if any), and the accompanying documents thereto; | | (e) | the results of any inspection carried out by the adjudicator of any matter to which the adjudication relates; | | (f) | the report of any expert appointed to inquire on specific issues; | | (g) | the submissions and responses of the parties to the adjudication, and any other information or document provided at the request of the adjudicator in relation to the adjudication; | | (h) | any other matter that the adjudicator reasonably considers to be relevant to the adjudication. |
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| (5) In determining an adjudication application, an adjudicator is not bound by any payment response, or any assessment in relation to the progress payment, that is provided in the contract to be final or binding on the parties to the contract, whether subject to any term or condition or otherwise. |
(6) The adjudicator must not consider an objection from the respondent of any nature that was not included in the adjudication response, unless —| (a) | the circumstances of that objection only arose after the respondent lodged the adjudication response with the authorised nominating body; | | (b) | the respondent could not reasonably have known of those circumstances when lodging the adjudication response with the authorised nominating body; or | | (c) | the objection relates to a patent error. [47/2018] |
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(7) If, in determining an adjudication application, an adjudicator has determined in accordance with section 7 —| (a) | the value of any construction work carried out under a construction contract; or | | (b) | the value of goods or services supplied under a contract, |
| the adjudicator (or any other adjudicator) must, in any subsequent adjudication application that involves the determination of the value of that work or of those goods or services, give the construction work or the goods or services (as the case may be) the same value as that previously determined unless the claimant or respondent satisfies the adjudicator concerned that the value thereof has changed since the previous determination. |
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(8) If the determination of an adjudicator contains —| (a) | a clerical mistake; | | (b) | an error arising from an accidental slip or omission; or | | (c) | a defect of form, |
| the adjudicator may, on the adjudicator’s own initiative or on the application of the claimant or the respondent, correct the mistake, error or defect, as the case may be. |
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| (9) Except as provided in subsection (8), the adjudicator must not change his or her determination on any adjudication application. |
(10) The authorised nominating body —| (a) | must serve a copy of the adjudication determination, and any amended adjudication determination, on the claimant and the respondent; and | | (b) | must serve on the principal (if known) and the owner concerned a written notice that the adjudication determination has been made or amended, as the case may be. |
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| (11) The notice mentioned in subsection (10)(b) must contain such particulars as may be prescribed. |
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| Adjudication review applications |
| 18.—(1) This section applies to a respondent who is a party to an adjudication if the adjudicated amount exceeds the relevant response amount by the prescribed amount or more, and to a claimant who is a party to an adjudication if the claimed amount exceeds the adjudicated amount by the prescribed amount or more. [47/2018] | (2) Subject to subsection (3), where a respondent or a claimant to whom this section applies is aggrieved by the adjudicator’s determination, the respondent or claimant may, within 7 days after being served the adjudication determination, lodge an application for the review of the determination with the authorised nominating body with which the application for the adjudication had been lodged under section 13. [47/2018] |
| (3) Where the respondent is required in consequence of the adjudication determination to pay an adjudicated amount to the claimant, the respondent must not lodge any application for the review of the determination unless the respondent has paid the adjudicated amount to the authorised nominating body. [47/2018] |
(4) An adjudication review application —| (a) | must be made in writing addressed to the authorised nominating body requesting it to appoint one or more review adjudicators to determine the application; | | (b) | must contain such information or be accompanied by such documents as may be prescribed; and | | (c) | must be accompanied by such application fee as may be determined by the authorised nominating body. |
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(5) The authorised nominating body must, upon receiving an adjudication review application —| (a) | serve —| (i) | a copy thereof on the claimant or the respondent, as the case may be; and | | (ii) | a written notice that the application has been made on the principal (if known) and the owner concerned; and |
| | (b) | subject to subsection (7) and in accordance with the prescribed criteria, appoint a review adjudicator or a panel of 3 review adjudicators. [47/2018] |
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| (6) The authorised nominating body must, within 7 days after receiving the adjudication review application, serve a written notice confirming the appointment of the review adjudicator or the panel of review adjudicators (as the case may be) on the parties to the adjudication review, the principal (if known) and the owner concerned. |
(7) For the purpose of subsection (5)(b) —| (a) | section 14(1) and (2) applies with the necessary modifications; and | | (b) | the authorised nominating body must not appoint an adjudicator whose determination is the subject of the adjudication review. |
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| Appointment of replacement review adjudicator |
18A.—(1) Where an authorised nominating body becomes aware that —| (a) | a review adjudicator or a member of a panel of review adjudicators appointed under section 18(5)(b) has ceased to meet the eligibility criteria for adjudicators under section 29; or | | (b) | a review adjudicator or a member of a panel of review adjudicators has become unable to perform the adjudicator’s duties for any reason, |
| the authorised nominating body must refer the adjudication review application to a person who is on the register of adjudicators established under section 28(4)(a) and whom the authorised nominating body considers to be appropriate for appointment as the replacement review adjudicator or a replacement member of a panel of review adjudicators to determine the adjudication review application in place of the review adjudicator or member of a panel of review adjudicators in paragraph (a) or (b), as the case may be. |
[47/2018] | (2) The person to whom the adjudication review application has been referred under subsection (1) may agree or decline to determine the adjudication review application. [47/2018] |
| (3) The authorised nominating body must, within 7 days after becoming aware of the matters in subsection (1)(a) or (b) (as the case may be) serve on the parties to the adjudication review, the principal (if known) and the owner concerned a written notice confirming the appointment of the person who has agreed to determine the adjudication review application referred to the person under subsection (1) as the replacement review adjudicator or the replacement member of the panel of review adjudicators, as the case may be. [47/2018] |
| (4) The authorised nominating body must not appoint an adjudicator whose determination is the subject of the adjudication review. [47/2018] |
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| Adjudication review procedures, etc. |
19.—(1) An adjudication review commences on the date immediately after the authorised nominating body confirms the appointment of the review adjudicator or the panel of review adjudicators (as the case may be) under section 18(6).(2) If an adjudicator is appointed under section 18A(3) to replace a review adjudicator, or if 3 adjudicators are appointed under section 18A(3) to replace 3 members of a panel of review adjudicators, a new adjudication review commences —| (a) | immediately upon expiry of the period mentioned in section 18A(3) within which the notice confirming the adjudicator’s appointment must be served; and | | (b) | as if the adjudication review under subsection (1) had not commenced. [47/2018] |
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(3) If 2 or fewer adjudicators are appointed under section 18A(3) to replace 2 or fewer members of a panel of review adjudicators, the adjudication review resumes for the reconstituted panel to hear and determine so much of the adjudication review as the panel considers fit —| (a) | immediately upon expiry of the period mentioned in section 18A(3) within which the notice confirming the adjudicator’s appointment must be served; and | | (b) | whether or not any part of the adjudication review has been heard by the previous panel of adjudicators. [47/2018] |
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| (4) In subsection (3), the reconstituted panel may have regard to the evidence given and arguments adduced during the part of the adjudication review heard by the previous panel of review adjudicators. [47/2018] |
(5) The review adjudicator or the panel of review adjudicators (as the case may be) must reject any adjudication review application that is not made —| (a) | within the period mentioned in section 18(2); or | | (b) | in accordance with section 18(4)(a) or (b). |
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(6) The review adjudicator or the panel of review adjudicators (as the case may be) must determine the adjudication review application within —| (a) | 14 days after the commencement of the adjudication review under subsection (1) or (2), as the case may be; | | (b) | the remainder of the 14 days after the resumption of the adjudication review under subsection (3); or | | (c) | such longer period as may have been requested by the review adjudicator or the panel of review adjudicators (as the case may be) and agreed to by the claimant and the respondent. [47/2018] |
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(7) In relation to any adjudication review application, a review adjudicator or a panel of review adjudicators (as the case may be) may —| (a) | substitute the adjudication determination that is the subject of the adjudication review for any other determination as is considered appropriate; or | | (b) | refuse the adjudication review application. |
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(8) A review adjudicator or a panel of review adjudicators (as the case may be) must determine under subsection (7)(a) —| (a) | the adjudicated amount (if any) to be paid by the respondent to the claimant; | | (b) | the amount (if any) to be returned by the authorised nominating body to the respondent; | | (c) | where the adjudicated amount mentioned in paragraph (a) is different from the amount that the respondent has paid to the authorised nominating body under section 18(3), the date on which the difference in amount is payable; | | (d) | the interest payable on any such amount; and | | (e) | the proportion of the costs of the adjudication review payable by each party to the adjudication review, |
| and must include, in the determination, the reasons therefor. |
[47/2018] |
(9) In determining an adjudication review application, the review adjudicator or the panel of review adjudicators (as the case may be) must disregard any part of a payment claim or a payment response related to damage, loss or expense that is not supported by —| (a) | any document showing agreement between the claimant and the respondent on the quantum of that part of the payment claim or the payment response; or | | (b) | any certificate or other document that is required to be issued under the contract. [47/2018] |
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(10) In determining an adjudication review application, the review adjudicator or the panel of review adjudicators, as the case may be —| (a) | may only have regard to the matters mentioned in section 17(4)(a) to (h) and the adjudication determination that is the subject of the adjudication review; and | | (b) | is not bound by any payment response, or any assessment in relation to the progress payment, that is provided in the contract to be final or binding on the parties to the contract, whether subject to any term or condition or otherwise. |
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(11) The review adjudicator or the panel of review adjudicators (as the case may be) must not consider an objection from the respondent of any nature that was not included in the adjudication response, unless —| (a) | the circumstances of the objection only arose after the respondent lodged the adjudication response with the authorised nominating body; | | (b) | the respondent could not reasonably have known of those circumstances when lodging the adjudication response with the authorised nominating body; or | | (c) | the objection relates to a patent error. [47/2018] |
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| (12) Where a panel of review adjudicators is appointed to determine an adjudication review application, the determination must be decided in accordance with the opinion of the majority of the review adjudicators on the panel. |
| (13) Sections 16(5) to (10) and 17(7) to (11) apply, with the necessary modifications, in relation to adjudication review applications. |
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| Withdrawal of adjudication applications and adjudication review applications |
20.—(1) An adjudication application may be withdrawn by the claimant at any time upon serving a notice of withdrawal on —| (a) | the adjudicator; | | (b) | the authorised nominating body which appointed the adjudicator; and | | (c) | the respondent. |
(2) An adjudication review application may be withdrawn by the party who lodged the application at any time upon serving a notice of withdrawal on —| (a) | the review adjudicator or the panel of review adjudicators, as the case may be; | | (b) | the authorised nominating body which appointed the review adjudicator or the panel of review adjudicators, as the case may be; and | | (c) | the other party to the adjudication review application. [47/2018] |
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| Effect of adjudication determinations and adjudication review determinations |
21.—(1) An adjudication determination made under this Act is binding on the parties to the adjudication and on any person claiming through or under them, unless or until —| (a) | permission of the court to enforce the adjudication determination is refused under section 27; [Act 25 of 2021 wef 01/04/2022] | | (b) | the dispute is finally determined by a court or tribunal or at any other dispute resolution proceeding; or | | (c) | the dispute is settled by agreement of the parties. |
| (2) An adjudication review determination under section 19(7)(a) has effect as if it were an adjudication determination for the purposes of this Act. |
| (3) This section does not affect the right of any party to challenge an adjudication determination or an adjudication review determination in any proceeding before a court or tribunal or in any other dispute resolution proceeding. |
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| Payment of adjudicated amount |
22.—(1) Where, in relation to an adjudication application, the adjudicator has determined that the respondent must pay an adjudicated amount to the claimant, then except as provided in subsection (2) and section 18(3), the respondent must pay that amount —| (a) | within 7 days after the adjudicator’s determination is served on the respondent; or | | (b) | by the date on which the adjudicated amount is determined by the adjudicator to be payable, |
[47/2018] (2) Where a respondent is required in consequence of the adjudication determination to pay an adjudicated amount to the claimant, and the claimant is entitled under section 18(2) to lodge an application for the review of the adjudication determination, the respondent must pay that amount —| (a) | not earlier than 7 days but within 10 days after the respondent is served the adjudicator’s determination; | | (b) | within 7 days after the respondent is served the adjudication review determination of an adjudication review brought by the claimant; or | | (c) | on or before the date (if any) determined by the review adjudicator or the panel of review adjudicators under section 19(8)(c) as the date that the amount is payable, |
[47/2018] |
(3) Where an application for the review of an adjudicator’s determination has been lodged by the respondent, an authorised nominating body to whom an adjudicated amount has been paid under section 18(3) must pay the relevant amount to the party who is entitled to payment —| (a) | within 7 days after the adjudication review determination is served on that party; or | | (b) | on or before a later date (if any) determined by the review adjudicator or the panel of review adjudicators under section 19(8)(c) as the date that the amount is payable. [47/2018] |
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(4) Where the adjudicated amount under an adjudication review determination is higher than the adjudicated amount under the adjudication determination, a respondent who has paid the adjudicated amount under the adjudication determination to the authorised nominating body under section 18(3) must pay the difference to the claimant —| (a) | within 7 days after the adjudication review determination is served on the respondent; or | | (b) | on or before a later date (if any) determined by the review adjudicator or the panel of review adjudicators under section 19(8)(c) as the date that the amount is payable. [47/2018] |
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