15 December 2020
‘Tis the Christmas season again. While for most this is a period of joy, for practitioners in the construction industry this can also mean dealing with the anxiety of receiving security of payment claims. In this article, we set out some important reminders so that your return after the Christmas or New Year office closure won’t be met with a nasty surprise.
In our previous article here, we discussed the critical timeframes for responding to payment claims in Victoria under the Building and Construction Industry Security of Payment Act 2002 (Vic) (Act) and considered precautions which could be taken especially around this time of the year.
This year, we turn our attention to adjudication applications under the Act arriving just before or during your office closure.
Timeframes for responding to an adjudication application
Under the Act, an adjudication application must be made by a claimant to an authorised nominating authority and a copy served on the respondent.
If you are served with a copy of the adjudication application, a response to the adjudication application must be served with the authorised nominating authority within (whichever expires later):
Critically, business days under the Act are defined as any days which are not Saturdays, Sundays or days which are observed as public holidays throughout Victoria. Unlike some other states and territories, there is no moratorium in the shut-down period except on Christmas Day, Boxing Day and New Year’s Day.
An adjudication application must be served in accordance with any notice provisions stated in your contract. In the absence of agreement, an adjudication application may be served on a respondent in the following ways:
The risk during your office closure period is that an adjudication application may be served at your unattended offices (including by hand or by fax) or sent to an unmonitored email address. This is especially important to consider given the effects of COVID-19 on our office operations.
With the short time frames under the Act for providing an adjudication response, even losing a day can be costly.
The claimant may make and serve on you an adjudication application only in the following circumstances:
No notice is required to be provided of a potential adjudication application (except where a payment schedule was not provided). Accordingly, we recommend that you:
If you are expecting or anticipate an adjudication application to be served on you during this holiday season, please contact us for assistance.
Authors: Scott Schlink & Christabel Teo
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.