Adjudication

The problem may seem simple...

... but the law rarely is

What I can do for you

1 lawyer or 30 lawyers. I have the immediate ability to scale up expert resources for your adjudication.

I am a natural leader, having managed closely a team of up to 30 staff over the years, both on the ground on the tools in major projects, and in the office as a construction business owner, and in the law office running a team of lawyers around the clock.

I have worked in every jurisdiction in Australia concerning the various security of payment Acts on every level of dispute from mum and dad building contract disputes, to disputes against major mines and disputes on national infrastructure projects worth hundreds of millions of dollars.

My expertise extends from the tools through programme and project management through to the very cutting edge of the law as it applies today.

How

Like all emergencies, adjudication requires an emergency plan. One that gets put into action the very moment you sign the papers and doesn’t stop 24/7 until your claim is answered or served – in time – every time.

I have been making and responding to simple and complex claims since 2004 and have handled hundreds of millions of dollars of claims. Over 16 years I have got this down to a precise science.

What is adjudication?

Simply put, adjudication is a form of dispute resolution that allows a qualified adjudicator (like an arbitrator), to decide a contested claim between parties without the need to involve the courts.

It’s is considered the fastest process and relatively cheap when compared to traditional litigation including other forms of alternative dispute resolution such as expert witness, mediation and arbitration and mini-trial.

The Security of Payment Acts describes specific mechanisms of statutory adjudication that is used to decide contested payment claims between claimants and respondents.

Once a claimant has lodged an adjudication application and the Queensland Building Construction Commission (QBCC) or other relevant body, has referred the adjudication application to an adjudicator, the adjudicator has a specific time to decide the dispute.

Who can apply for adjudication and how do they do it?

Under the Security of Payment Acts, only the claimant may apply for adjudication of a dispute arising from a payment claim.

The process commences when a claimant serves an adjudication application with QBCC or other relevant body in that state.

The claimant may apply for adjudication under several specific scenarios - each the relevant election under its Act.

Every Act is different. But similar. The following is illustrative, and you should consult John Merlo as to the specific law in your matter.

Where a claimant disagrees with the scheduled amount the respondent has stated on a valid payment schedule. Application is to be made within 30 business days of being served the payment schedule.

If a respondent has provided a payment schedule but failed to pay the full or any part of the scheduled amount by the due date for payment. Application to be made within 20 business days of the due date for payment.

If the respondent didn’t provide a valid payment schedule, the due date for payment has passed without full payment of the claim. An Application should be made within 30 business days of the later of due date for payment, or the last day of which the payment schedule was due.

To apply for adjudication, the claimant must serve a copy of their payment claim, the details of the construction contract, the payment schedule any other supporting evidence they can rely on to support their claim.

The requirements for lodging the adjudication application differs from one jurisdiction to another. In QLD for example, on the approved form on QBCC accompanied by the fee prescribed by regulation for the application

Key milestones in the adjudication process

Each of the Security of Payment Acts sets down a strict timeline for each of the adjudication process. The various acts are designed to facilitate rapid cash flow. The various milestones and requirements are therefore not flexible, and require all parties, including adjudicators, to conform to deadlines. In all cases payment should be realised in around 40 days.

Firstly it should be recognised that not every jurisdiction makes a difference between simple and complex payment claims.

Generally however, each of the Security of Payment Acts proceed along the following timeline:

Claimant lodges an adjudication application and serves the same application on the respondent.
The respondent does/doesn’t submit an adjudication response within the similar of:
Standard Payment Claim -10 business days after being served with an adjudication application; or
7 business days after being served with a notice that an adjudicator has been appointed.
or Complex Payment Claim (>$750,000 ex GST) -15 business days after being served with an adjudication application; or 12 business days after having been served with a notice that an adjudicator has been appointed.
A registered adjudicator in turn serves a notice of appointment on both parties.
After the adjudication response due date, an adjudicator has within 10 business days for a standard payment claim, or 15 business days for a complex payment claim, to decide the matter. However, with the parties’ consent, the adjudicator may request an extension of time.
The adjudicator will determine the matter within the required time, and notify the parties of the decision.
Where an adjudicator determines that the respondent is liable to make an amount of payment to the claimant, the respondent has about five business days in which to make payment to the claimant. If the respondent fails to do this, the claimant can then enforce the adjudication determination in a court of competent jurisdiction.

The adjudication application

To apply for adjudication, a claimant has to undertake the following steps:

Complete where required, an approved adjudication application form and attach the following:

A copy of the payment claim
A copy of the construction contract. If an oral contract, or part-oral, a document evidencing the terms of the oral contract.
A copy of the payment schedule if given.
Evidence of how and when service of payment claim was effected.
Copies of the business details of both parties – such as their ABN/ACN details.
Items relevant to the construction contract or that support the payment claim, such as email, diary notes, statutory declarations, and previous invoices and claims.
The complete adjudication application, including all submissions, must be lodged on the QBCC or relevant authority, and generally an exact same copy must be served on the respondent.

Delays in serving the adjudication application on the respondent will delay or de-rail the adjudication process.

The adjudication response

An adjudication response is the legislatively mandated formal response made to a claimant’s adjudication application.

Timing is different in every jurisdiction, but is remarkably similar in the majority. It has to be remembered that not every jurisdiction makes a distinction between simple and complex payment claims.

For Standard Payment Claims, it must be made within the later of 10 business days after being served with a copy of the adjudication application; or 7 business days after the respondent has been served with the notice detailing the appointment of an adjudicator, but for Complex Payment Claims, typically (>$750,000 ex GST) It must be made within the later of: 15 business days after being served with a copy of the adjudication application; or 12 business days after the respondent has been served with the notice detailing the appointment of an adjudicator.

Typically the adjudication response can only expand upon the precise points made in a payment schedule. Generally is explanations or reasons have not been provided in the payment schedule they cannot be expanded upon and will not be accepted by the adjudicator.

As noted, an adjudication response may only expand on issues detailed on the payment schedule. Where a payment schedule is not provided, ora payment schedule is considered invalid by the adjudicator, the adjudicator may decide education application without reference to an adjudication response.

And where in adjudication response is out of time or considered invalid, a respondent may be able to raise issues concerning the validity of a payment claim, the construction contract and other that jurisdictional issues.

Further submissions

In most cases further submissions must:

Be in writing;
Identify the adjudication application to which they relates;
Be served on each party within the time stipulated by the adjudicator or otherwise as agreed;
Only expand on issues Rested by the adjudicator.

What the adjudicator does

When considering an adjudication application and adjudication response, an adjudicator is asked to determine three things:

To value the construction work and or related goods and services;
To decide whether there are monies owing to the claimant from the respondent - the ‘adjudicated amount’.
The date when monies became payable;
The applicable rate of interest.
Which part should indicators costs, or if the costs are divided between the parties, and if so in what percentage.
The adjudicator provides reasons for their decision unless specifically asked not to by the parties.

Universally under the various Security of Payment Act an adjudicator must rely only on the following in making a decision:

The provisions of the Act.
The relevant construction contract to the adjudication application.
The payment claim and any attachments.
The payment schedule and any attachments.
The results of any inspections carried out by the adjudicator.

Requests for information, extensions of time, Conferences and inspections

Under the various Security of Payment Legislation an adjudicator has been granted statutory power to undertake the following to make an adjudication decision. Which steps are taken is uniquely within the adjudicators discretion.

An adjudicator can ask for further submissions in regards to specific issues within specific deadlines.

An adjudicator can request an extension of time. Both parties must agree in order for the extra time to accrue under the legislation.

Call a conference. While uncommon, an adjudicator has a statutory right to request a conference between the parties without legal representation.

Conduct an inspection. While uncommon, an adjudicator has a statutory right to carry out an inspection of work to which the payment claim relates.

Handing down the adjudication determination

Once the nominated adjudicator completes the adjudication determination they will inform the parties that a determination has been made.

The determination will then be released to the parties once the relevant adjudication fees have been paid.

Respondent liable to pay an adjudicated amount

If an adjudicator determinations that the respondent must pay some amount to a claimant (the adjudicated amount), then a respondent must pay such amount, plus any amount of interest owing. Typically, this payment must be made within five business days of being served with the adjudication decision, unless an adjudicator has provided otherwise.

Often an adjudicator will apportion the liability for their fees between the claimant and the respondent, often stated as a percentage.

Its useful to note that any fees that the respondent is liable to pay to the claimant can be enforced via an adjudication certificate.

A filing fee will be applicable when lodging the adjudication certificate.

Enforcing an adjudication decision

Where a respondent has not paid the adjudicated amount and any apportionment of costs or all of the fees owing to a claimant, a claimant can obtain the a copy of an adjudication certificate.

The adjudication certificate is the formal legal document that asserts the adjudicated amount, the amount of interest owing as well as any adjudicator fees owed to a claimant.

If the adjudication certificate requires a cost to produce, the fee for this amount may also be included (but only if the adjudication determination state this, And it’s a good reason to have that drafted in any submissions in the adjudication application).

A claimant may enforce the adjudication certificate at any court of ‘competent jurisdiction’. Whether a court is a court of competent jurisdiction, usually depends upon the prescribed monitory jurisdiction of the relevant court.

Each jurisdiction differs but the following guide may be relevant.

Small Claims Division of the Local Court – claims up to $10,000

General Division of the Local Court – claims up to $100,000 (or $120,000 in some limited circumstances)

Magistrates court up to $150,000

District Court $150,000-$750,000

Supreme Court – Claims over $750,000

Once the adjudication certificate is lodged, claimants may be given options on how to enforce the outstanding debt, if not paid. Some options include:

The seizure and sale of property
Stop orders
Redirection of debts
Redirection of earnings
Payment of money order debt by instalments
Charging orders
The appointment of a receiver

The claimant should put any queries about the enforcement of statutory debts to the relevant court registrar.

It is always recommend to consult your legal practitioner on the best options on enforcing outstanding debts.

Science and law come together

Whether you have received a payment claim with 1 box or 100 boxes of material I can handle your case.

Listen carefully.

The key to adjudication is threefold. Information management. Issue management. Project management.

I have been driving projects for thirty years. Trust me to take ownership of your matter and make your adjudication application or response today.

E Discovery - Why use my e-discovery services

I can offer data collection services across a wide range of data sources and devices, including - Relativity, Ringtail, Summation and Nuix using industry leading forensic software. At Merlo Law I make sure we meet all regulatory requirements utilising standardised collection methodologies and chain of custody guidelines.

Stand with me head and shoulders above in using world class technological protocols to incisively cut to the heart of your matter - before you spend big dollars.

Litigation attracts significant costs for litigants, and 70-75% of this cost is attributable to the review of discovery documents. My review teams can provide scalable support from highly qualified review experts, equipped with the latest legal technology solutions providing corporate teams with the additional capacity required to agilely manage larger projects. My team can conduct in-depth analysis of acquired data, working with various experts to assist in discovering findings that are of interest to clients, law enforcement and regulators.

Technology Assisted Review

Why Choose Technology Assisted Review?

I can use different technology assisted review models and workflows including Relativity Assisted Review and Active Learning.

Technology Assisted Review (TAR) includes a range of state-of-the-art technologies that reduce the number of documents requiring review and identify ideas and concepts within a document population. TAR facilitates the implementation of workflows which result in efficient, time-saving review, and also vastly increase the accuracy of documents chosen, vastly improving efficiencies in review outcomes.

Do you have a large document population?

I understand the complexities and challenges of unstructured data and offer scalable, cost efficient solutions for search, retrieval and review in a legally defensible manner.

By using TAR also known as predictive coding, I can save you time and money by applying select coding choices from a set of documents to the entire set of documents.

Using TAR I can combine powerful technology, our legal expertise and a robust review workflow protocol to effectively review large document sets accurately in an efficient, low risk, and time and cost-effective method.

In the initial phase I utilise my subject matter expertise to review tranches of documents in the initial phase. After each tranche of documents is reviewed, coding is applied to conceptually similar documents throughout the dataset.

This ensures clarity in process, and reporting is provided after each round where any discrepancies in coding are highlighted and addressed.

The coding assisted designations are refined, as more, and more of your coding decisions are considered and utilised the with documents.

This iterative process of code, review and report continues until the my review team agree with the categorisation of the document tranche.

While this process requires more upfront consideration than a standard linear review, the process can drastically reduce the amount of time to complete a document review – saving you time and legal dollars and making sure your best case is put forward – fully supported, and on time.

Early Case Assessment

Is Early Case Assessment for you?

If you need early case assessment, a total case assessment or just a first pass review of any size data set then you need early case assessment.

Early Case Assessment or ECA refers to the electronic process of quantifying risk and the scope of risk prior to intensive engagement in a legal matter through the early evaluation of electronically stored information.

This ECA solution provides both government and corporate clients a high-level review of data, enabling lawyers, forensic units, and litigation support teams to analyse data, and provide an early case assessment, a total case assessment or just a first pass review of any size data set.

With ECA visual summary reports I will provide you an overall picture of your data as well as analysis and identification of critical trends or patterns in data such as date and email volume by domain. This information can be used to easily identify areas to focus on in your matter.

Analytics

Why use Analytics?

Analytics is search and find technology well beyond keyword searching, I can use Analytics to manage your electronic information based on the content. It can be applied to any part of the review process of your matter.

Based on a few lines of text, or ‘seed sets’ of example documents our analytics engine can save you big dollars by automatically categorising documents by identifying issues within document sets, and by grouping together documents with commonalities.

Using this technology effectively within the review workflow process it is possible to quickly prioritise, allowing the most relevant documents to be reviewed first.

Using Analytics in the documents review workflow greatly reduces the risk of inadvertent disclosure of privileged or confidential documents.

Case Study

A National Builder company was involved in litigation over a corporate criminal matters. Only four lawyers were assigned to the case, overseen by one independent consultant – an especially small team, given the 900GB of data collected for the case. De-duplication reduced the client’s original count of over 6 million documents down to 4 million documents. The client agreed on a list of keywords to help identify relevant documents.

A document tranche was agreed upon. The selected tranche was ‘seeded’. A selection of keywords culled the document count significantly further, down to around 115,000 documents. It was estimated that that if four lawyers had to review all 115,000 documents linearly – the review would take 1,300 hours to complete. The TAR process was engaged and around 2000 relevant documents were identified with a 2% margin of error which was deemed acceptable by the client.

Global Support

As a member of Lawyers Associated Worldwide, through Merlo Law I may offer an unprecedented level of support to our clients in the major legal centers of the Asia Pacific region Europe and the United States, with tasks ranging from complex due diligence exercises, to data reviews, to discovery reviews and complex investigations.

If suitable, I may utilise review teams available in the Asia Pacific region and in India with experienced legal support professionals available 24/7, all year round. Our teams endeavour to provide an unparalleled service.

We may also offer on-site embedded review teams, with access to the full suite of technologies offered, for complex and sensitive matters.

We also do offer competitive and transparent pricing models based on the volume of data and the complexity of the review, secure hosting solutions and capability to scale to meet the requirements of projects of all sizes.

Forensic and Expert Partnerships

I partner with court appointed and other field and forensic experts with specialised technical knowledge gained through years of experience working closely with clients like you, on matters as broad as bio-deteriation, industry specifications, delay, destructive testing and analysis, environmental and technical, geotechnical, fraud investigations, criminal offences, IP / identity thefts, employee misconducts, forensic accounting, litigation and arbitration. My team of Experts work across law enforcement, government agencies and the private sector.

Need more help?

You should immediately confirm or qualify any information relied upon with John Merlo of Merlo Law. We look forward to being of assistance.