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When is a claim for payment not a BIFA payment claim? Part 2.

Janelle Kerrisk
Janelle Kerrisk October 21, 2019

Following on from the article by Jonathan Miliszewski available here we take a look at a case example to give you some idea of what adjudicators are saying about a failure to identify the work the subject of the claim.

On 8 July 2019 adjudicator Richard Atkin (J1182971) delivered the adjudication decision 533688 in the matter of  Niclin Constructions Pty Ltd (Niclin) v SHA Premier Constructions Pty Ltd (SHA).  The project was for the design and construction of a service station on the Gore Highway at Southbrook in Queensland.  Niclin provided a payment claim on 3 April 2019 in the amount of $461,723.44 including GST.  This was therefore a standard payment claim under BIFA.  SHA responded with a payment schedule dated 26 April 2019 which provided a scheduled amount of -$272,352.16 including GST. 

Adjudicator Atkin ultimately determined that he did not have jurisdiction to provide a decision under BIFA and apportioned his fees 100% to the claimant Niclin.  Adjudicator Atkin determined that Niclin had failed to identify details of the work and variations previously completed and paid for to enable understanding of the work for which payment in the payment claim the subject of the adjudication was sought.  Adjudicator Atkin applied the court’s decision in Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248 12  where it was held that the absence of such information made it “impossible to determine the basis of the claim.  Adjudicator Atkin also determined that it was not possible for the claimant Niclin to rectify deficiencies in its payment claim when putting forward its adjudication application.

Ultimatelythe adjudicator determined that he had no jurisdiction to adjudicate the application.  While from a legal standpoint an adjudication decision does not provide any binding authority it does provide guidance for you in respect of how adjudicators are approaching these matters.  While there has been a perception previously towards adjudicators pressing for the advancement of a claimant’s position, the recent adjudication decisions indicate a willingness by adjudicators to apply the jurisdictional limits of the legislation.  

One of the key triggers to enliven the adjudication process is a valid payment claim.  One of the key requirements of a valid payment claim is to identify the work the subject of the claim.  If when preparing a schedule, you consider that there is not enough information within the payment claim to be able to properly identify the work this should be noted in your payment schedule.  The reasons why the lack of information impedes your ability to assess the claim or provide a payment schedule should also be detailed and responsive from a practical perspective.  Failure to identify the work the subject of the claim does in no circumstances mean that you should decline to provide a payment schedule.  

Even in circumstances where you consider a valid payment claim has not been provided because it fails to adequately identify the work you should still provide a payment schedule.

Better to be safe than sorry.

Not intended as legal advice. Read full disclaimer.
Janelle Kerrisk
Janelle Kerrisk October 21, 2019

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