Client Update: Adjudication during the festive season are you prepared?
16 December 2013
In brief: Principals and head contractors need to act now, to avoid being caught short by an application for adjudication made just before, or on any day during, the festive season. Partner Stephen McComish and Lawyer Kristian Maley report.
- Deadline for response
- Christmas adjudication: the risks
- How can principals and head contractors manage the risks?
A party served with an application for adjudication under the Construction Contracts Act 2004 (WA) has 14 calendar days after service to prepare and serve a response. The 14-day period applies regardless of any public holidays, and cannot be extended by the adjudicator. The response must contain everything relied on in responding to the application, and, if served late, may not be considered.
An application for adjudication served just before or during the festive season carries significant risks and potential difficulties for a principal or head contractor:
- The application might go unnoticed until the new year. By then, there may be very little time to prepare and serve a response or, at worst, it might be too late to do so.
- Preparing a response is likely to be difficult (or impossible), with key personnel and resources being unavailable.
The first step in managing the risk of a potential 'Christmas adjudication' is to identify any contentious payment claims for which the contractor might be entitled to apply for adjudication before or during the festive season (namely, whether a payment dispute arose in the preceding 28 days).
If there are any such claims, principals should take the following steps to manage the associated risks:
- Brief the project team on the prospect of an adjudication. Circulate contact details and availabilities (including any travel plans) of critical team members.
- Prepare a plan dealing with the following:
- What will happen if an application is served (eg who will be notified, who will receive the original and copies (if applicable) of the application)?
- How will the response be prepared (eg who will coordinate it and the key tasks that will need to be carried out)?
- Ensure that staff who might receive an application can recognise it and know what to do with it (consider reception, mailroom staff, the project team and company directors).
- Put a system in place to monitor electronic communications throughout any office closure and while key personnel are on leave (consider email, fax, and any project document management systems).
- If an application seems likely, start preparing a response without delay (and well before any application is served).
- If in doubt, seek expert assistance.
If you need advice or assistance over the festive season, please contact Stephen McComish.
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