BCIPA QLD Adjudication Application Assistance A Smart Move For Claimants

According to QBCC statistics approximately 70% of adjudication applications lodged by claimants are being found to be invalid based on jurisdictional issues that are easily avoided with the right know how.

While as the QLD Payments Act is a short, cost effective and normally successful way to fast track a judgment against a debtor it does require a degree of technical understanding as to how the legislation is intended to operate.

Unscrupulous respondents are preying on this no end to evade their legal and moral obligations of paying their debts.

Knowing when and how to serve a payment claim under the QLD Payments Act is critical to success. And equally important is knowing then how to respond in turn to the respondents response to the payment claim, and then how to follow through and prepare a solid adjudication application that will withstand the respondents attempts to defeat it or have it thrown out on jurisdictional grounds.

Most importantly it is critical to understand that in Queensland you only get one chance at serving a payment claim under the Payments Act as a result of case-law that says once the work is finished there is only one reference date that arises to give a claimant the right to serve a payment claim under the QLD Payments Act.

For assistance preparing payment claims, 2nd notices, and adjudication applications call us for a free consultation that just may mean you get all of your money when otherwise you would be left with very little other alternative than to write it off as a bad loss.

Case Study: Shop Owner Denies Requesting Works

Shop owner engages roofer by phone to carry out roof repairs then later denies requesting works.

Outcome:

Week 1: RECOUP serves payment claim on shop owner for roofer.

Week 3: RECOUP serves 2nd Notice on shop owner.

Week 4: RECOUP applies for adjudication.

Week 7: RECOUP wins at adjudication for roofer.

Week 8: RECOUP enters judgment at local court and obtains bank garnishee order.

Week 9: RECOUP receives cheque direct from shop owner’s bank and pays roofer.

Get RECOUP Contractor Debt Recovery on the job for you today.

Alukat Facade Pty Ltd placed in liquidation on 16 September 2015

Our glass manufacturing industry has been decimated by the importation of cheap glass from China.

And now, Chinese companies are coming to Australia, setting up, sort of (but that’s another story), as building facade contractors and undercutting local companies like there is no tomorrow.

The problem is the conditions in our industry in our country are very different to China and these companies are failing and are dragging our local subcontractors down with them.

Alukat Facade is the second Alukat entity to go into liquidation within the space of a year.

And now, the word is that there is another Alukat entity newly incorporated so the business can rise again like the proverbial phoenix rising out of the ashes…..

And that is not to mention Alukat Queensland

Alukat Pty Ltd was the first of the Alukat entities to go into liquidation:

Name:	ALUKAT PTY LIMITED
ACN:	136 343 989
ABN:	21 136 343 989 (External Link)
Registration date:	30/03/2009
Next review date:	30/03/2016

Status:	External Administration
Type:	Australian Proprietary Company, Limited By Shares
Locality of registered office:	SYDNEY NSW 2000
Regulator:	Australian Securities & Investments Commission

Alukat Facade Pty Ltd was the second of the Alukat entities to go into liquidation:

Name:	ALUKAT FACADE PTY LTD
ACN:	165 302 250
ABN:	41 165 302 250 (External Link)
Registration date:	14/08/2013
Next review date:	14/08/2016

Status:	External Administration
Type:	Australian Proprietary Company, Limited By Shares
Locality of registered office:	SYDNEY NSW 2000
Regulator:	Australian Securities & Investments Commission

The details of Alukat Facade QLD Pty Ltd, still trading at this stage, are below:

Name:	ALUKAT FACADE QLD PTY LTD
ACN:	601 431 529
ABN:	68 601 431 529 (External Link)
Registration date:	25/08/2014
Next review date:	25/08/2016

Status:	Registered
Type:	Australian Proprietary Company, Limited By Shares
Locality of registered office:	SYDNEY NSW 2000
Regulator:	Australian Securities & Investments Commission

The trading of the fourth Alukat entity will be posted here as soon as it is made known.

The Liquidator’s details for Alukat Facade Pty Ltd is below:

Liquidator Appointment

Construction Contracts

Contracts in the building & construction industry come in many and varied forms.

A construction contract can be a very simple oral agreement.

It could also be part written, and part oral. For example; you might email a quote to someone and they might pick up the phone and say go ahead.

Probably a safe minimum is a written quote and a written acceptance, be it sms text message or email or fax or hand delivered documents on letterheads / purchase orders, it’s good to have a written record of the agreement.

Organisations such as Master Builders Association (MBA) and Housing Industry Association (HIA) have basic contracts available for purchase at reasonable prices. These are a good basic agreement to use if there is nothing else available.

Larger projects will use quite substantial instruments of agreements such as AS4000, AS4902, AS2124 etc…

Government projects will use contracts such as the GC21.

Regardless of the form of the agreement made between two parties the law says that the agreed terms are binding. However it isn’t unusual for parties to recall the detail of the agreement differently resulting in a dispute. Hence the reason why a written record of the agreement is invaluable.

It is important to understand the key components of an agreement.

Who the parties to the contract are, correct and complete entity names inclusive of ABN’s and ACN’s if relevant. If an individual full name and identifier such as drivers licence is helpful.

Execution.

What the contract works / services are. Scope of works.

Type of contract, ie; fixed lump sum, schedule of rates, cost plus, etc…

Price, schedule of rates.

Commencement date and completion date.

Time for making claims.

Time for payment.

How to claim an extension of time in respect of the completion date when your work is delayed by others.

Liquidated damages.

How to claim a variation to the contract.

How to terminate the contract.

Completing the contract.

Retentions.

Security Of Payment Act Information Kit

This Security Of Payment Act Information Kit by RECOUP Contractor Debt Recovery is designed to help you work your way through all of the issues that arise during each phase of a construction project.

The purpose of the RECOUP Security Of Payment Act Information Kit is to assist in such a way that you will manage projects so that the provisions of the Security Of Payment Act Legislation are underpinned by, and will be supported by your rights to your entitlement to be paid for the construction work you have carried out, and or the related goods and services you have supplied, both under a construction contract, and under the building & construction security of payment act legislation for each state, because you have good project and contract administration documentation and records.

Below are the key areas and elements of a construction project, including payment dispute resolution, that the RECOUP Security Of Payment act Information Kit addresses.

The 3 Key Phases of a Construction Project are:

Pre-Construction

Construction

Post-Construction

Key Elements of the Pre-Construction Phase

Marketing
Courtship / Relationship
Estimation
Tendering
Contract Negotiation
Contract Execution

Key Elements of the Construction Phase

Site Instructions
Minutes Of Meetings
Record Keeping / Site Diaries
Progress Claims
Variations & Delays & EOT Claims
Stopping Work & Disputes
Achieving Practical Completion

Key Elements of the Post-Construction Phase

Practical Completion Documentation
Final Claim
Rectifying Defects
Claiming Retentions

Construction Project Payment Dispute Resolution Processes:

Dispute Resolution Pre-Judgment

Valid Payment Claims & Effective Service thereof
2nd Notices
Payment Schedules
Applying for Adjudication & dealing with Adjudication Responses

Dispute Resolution Post-Judgment

Entering Judgment
Debt Collection
Contractors Debts Act 1997 – Claiming from the Principal
Enforcement

Project Learnings

De-brief
Critical Analysis
Action Plan
Checks & Balances

Adjudication Applications

Are You Entitled To Apply For Adjudication Under The Security Of Payment Act ?

A claimant may apply for adjudication of a payment claim (an “adjudication application” ) if:

(a) the respondent provides a payment schedule under Division 1 but:

(i) the scheduled amount indicated in the payment schedule is less than the claimed amount indicated in the payment claim, or

(ii) the respondent fails to pay the whole or any part of the scheduled amount to the claimant by the due date for payment of the amount, or

(b) the respondent fails to provide a payment schedule to the claimant under Division 1 and fails to pay the whole or any part of the claimed amount by the due date for payment of the amount.

When Can you Apply For Adjudication Under The Security Of Payment Act ?

An adjudication application to which subsection (1) (b) applies cannot be made unless:

(a) the claimant has notified the respondent, within the period of 20 business days immediately following the due date for payment, of the claimant’s intention to apply for adjudication of the payment claim, and

(b) the respondent has been given an opportunity to provide a payment schedule to the claimant within 5 business days after receiving the claimant’s notice.

What Must An Application Made Under the security Of Payment Act Contain ?

An adjudication application:

(a) must be in writing, and

(b) must be made to an authorised nominating authority chosen by the claimant, and

(c) in the case of an application under subsection (1) (a) (i)-must be made within 10 business days after the claimant receives the payment schedule, and

(d) in the case of an application under subsection (1) (a) (ii)-must be made within 20 business days after the due date for payment, and

(e) in the case of an application under subsection (1) (b)-must be made within 10 business days after the end of the 5-day period referred to in subsection (2) (b), and

(f) must identify the payment claim and the payment schedule (if any) to which it relates, and

(g) must be accompanied by such application fee (if any) as may be determined by the authorised nominating authority, and

(h) may contain such submissions relevant to the application as the claimant chooses to include.

Call RECOUP on 1300 732 687 for further assistance.

1300 RECOUP Contractors Debt Recovery Contact Us For Security Of Payments Act Help

When your customers do not pay within the agreed credit terms it is wise to treat this as a signal that they may be in financial difficulty. First in best dressed definitely applies to the building & construction debt recovery process. Security Of Payments Act is the process that will get you paid when your client gets into financial difficulty. But don’t ignore the warning signals. If you have concerns they are probably justified.

If this is the case you should move quickly for several reasons.

if your client is having trouble paying you they probably owe money to many others as well as you. So you need to get in first before someone else gets their hands on all the money your client may have. Or worse someone else might put them in to bankruptcy which will mean you will get nothing.
If you are fast enough there may be an opportunity to pursue your clients customer for the money you are owed. If your client is still owed money by their customer, then at a certain point we can serve a request on your clients customer to hold money in the amount you are owed pending judgement and an appropriate court order requiring them to pay you direct.
The sooner we press your debtor for payment the more likely you will be paid in full and the sooner at that.

Call RECOUP Contractors Debt Recovery now for assistance to secure your money with a Security Of Payments Act payment claim.

Phone 1300 RECOUP (1300 732 687)

Is your cashflow tight ?

Let RECOUP give you Cashflow Solutions advice to help you turn it around !

If you have completed work and should have been paid by now contact us anytime 24/7 and we will help you collect the money you are owed very quickly.

We are Australia’s No #1 Security of Payments Act Specialist – GET STARTED HERE…
Now at almost $100 million in recovered Contractor Payments – RECOUP Contractor Debt Recovery are Trusted by more Industry Groups and Trade Associations throughout Australia than any other debt collection agency.

RECOUP are Security Of Payments Act Experts & Debt Recovery and Debt Collection Specialists for Building and Construction Contractors. RECOUP aims to keep all stakeholders in each state up to date with changes and developments in each state’s legislation that impact claiming payments for building and construction work. RECOUP provides information and assistance regarding the following legislation:

New South Wales: “Building and Construction Industry Security of Payment Act 1999″
Victoria: “Building and Construction Industry Security of Payment Act 2002″
Queensland: “Building and Construction Industry Payments Act 2004″
Australian Capital Territory: “Building and Construction Industry (Security of Payment) Act 2009″
South Australia: “Building and Construction Industry Security of Payment Act 2009″
Tasmania: “Building and Construction Industry Security of Payment Act 2009 (No.86 of 2009)”

To help you manage your Security Of Payments Act Claims better :

Using our Site Diaries on your projects will make you more money and help ensure you get paid for ALL of your hard work.

The benefits of keeping a site diary for all of you work / projects cannot be overstated. Enormous.

Security Of Payments Act claims are all about having dispute resolved at adjudication. At adjudication the object is to satisfy an adjudicator that your version of events is the most factual.

Site diaries kept daily become a record of “contemporaneous” evidence.

Contemporaneous means : “existing, occurring, or originating during the same time”.

So evidence that was created at the same time that the event took place is considered the most reliable of all evidence.

Site diaries are the best way to create contemporaneous evidence.

Adjudicators love contemporaneous evidence.

Subscribe to our Newsletter and we will deliver your FREE Site Diary pronto!

Phone 1300 RECOUP (1300 732 687) and order your free site diary once you have signed up for your free RECOUP Newsletter

The definition of “Adjudication” is: to settle judicially.

Adjudication of a building and construction dispute can occur when an Adjudicator is empowered by the relevant state legislation to determine the outcome of such an application only if he has jurisdiction under that legislation.

Continue reading “Adjudication Definition” →

Category: Blog