Waiting for the Construction Contracts Act 2013…..

It is to be expected that a certain level of adjudication ennui has developed among practitioners in the face of the long awaited commencement of the Construction Contracts Act, 2013.  In anticipation of the changes mooted in the said legislation the legal community moved with notable speed to prepare for the change in our construction dispute firmament. Members will recall that the topic of adjudication was addressed in the CBA’s Construction Law Conferences in November 2013 and in July 2014 with the delivery of the following papers by Members:

So with continued patience being the watchwords of the day, Members might have regard to a .pdf review of the equivalent legislation in Western Australia (WA) recently published by Squire Patton Boggs which helpfully summarises the practical implementation of the WA legislation (a close avatar to our own) and includes a checklist of some of the important practical considerations to bear in mind during the course of an adjudication:

  • Be particularly careful of date, time and form requirements for the submission and certification of payment claims, as this may affect the date by which an adjudication application may be commenced or responded within.
  • Each party to the adjudication application, as well as the appointed adjudicator or prescribed appointor, must be correctly identified.
  • A company search should also be conducted to confirm the company is still registered and the details provided are correct. •
  • An address, telephone and fax number must also be provided for each party to the adjudication to the extent such details are known.
  • The date of the application, and date of response, should be clearly stated in the adjudication application.
  • The application or response must be served on each other party, as well as on the appointed adjudicator or prescribed appointor.
  • Ensure adequate records of dealings with external parties, particularly with respect to payment, are maintained. This will be beneficial during the course of adjudication, particularly in facilitating instructions to lawyers if they are engaged.
  • If you are an applicant: – It is vital that the adjudicator or prescribed appointor, postal address, phone and fax number, as well as required deposit or security accompanying the application has been specified.
  • The application should: outline the details of the construction contract involved (or relevant extracts); include the payment claim that has triggered the dispute; attach any information, documentation and submissions which the applicant will be relying on in support of its adjudication application.
  • If you are a respondent, the response must: include the details of, or have attached to it, any rejection or dispute of the payment claim that has given rise to the dispute; attach any information, documentation and submissions which the respondent will be relying on in support of its response.

The pdf also provides a simple flowchart of the process and case summaries of the following useful Australian decisions which are worth a scan:

  • NRW Pty Ltd v Samsung C&T Corporation
  • Georgiou Group Pty Ltd v MCC Mining

In tribute to Vladimir and Estragon, Members may download the said .pdf by clicking on the following link – Construction Contracts Act 2004 (CCA) WA

JSF

18.02.2016

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