Enforcing payment - frequently asked questions
What happens if the respondent fails to pay the adjudication amount?
The claimant can ask the ANA to provide an adjudication certificate. The claimant can then have the adjudication certificate filed in the court as a judgement. The claimant must support the certificate with an affidavit state that the determined amount is still outstanding.
The judgement debt is then enforceable in the same way as any court judgement, without the need for the court to decide the matters in dispute.
What can the claimant recover after adjudication?
The claimant may recover what has been determined by the adjudicator and certified by the ANA. This will be the amount of the payment due and may also include the:
- respondent's share, if any, of fees paid by the claimant, and
- interest on any unpaid progress payment from the date due to the date of the certificate.
How do I recover a debt after adjudication?
If the respondent does not pay the amount determined by the adjudicator you may secure judgement for the adjudicated amount by:
- requesting the ANA (who nominated the adjudicator) to give you an adjudication certificate certifying the amount due to you, and
- filing the adjudication certificate (with an affidavit of debt) in any court of competent jurisdiction.
A sample form for an affidavit of debt is provided below. The ANA prepares the adjudication certificate. The claimant must prepare the affidavit of debt and swear the affidavit before a Justice of the Peace or a solicitor. Fees will be payable to the ANA and the court. The court will then give the claimant a certificate of judgement. Courts of competent jurisdiction are:
- Local Court for amounts of up to $60,000
- District Courts for amounts exceeding $60,000 but not exceeding $750,000
- Supreme Court for amounts exceeding $750,000
The advantages of this process include the fact that there is no need to issue a summons and, if the respondent wishes to stop the enforcement of the judgement, the respondent must make an application to the court to set aside the judgement.
If the respondent makes such an application the respondent must pay into court as security the unpaid portion of the adjudicated amount. This eliminates the advantage, which a respondent had when the respondent could retain the disputed amount while legal proceedings were in progress.
if the respondent makes application to set aside the judgement for the adjudicated amount, the claimant will usually need a solicitor to assist the claimant to oppose the application.
Can I exercise a lien?
The Act provides that the claimant has a lien or charge over unfixed plant or material supplied by the claimant to the respondent for or in connection with the carrying out of the construction work.
A lien is the right to seize and sell goods in order to obtain payment. If the goods are sold for more than the amount owed under the Act then the balance must be paid to the respondent.
Can I use the Contractors Debts Act to recover payment?
The claimant may also use the Contractors Debts Act 1997, where the claimant is a subcontractor claiming for work or goods which the main contractor is acquiring for the purposes of performing a main contract for a principal.
In such circumstances the claimant would ask the court, at the time of lodging the adjudication certificate, for a debt certificate under section 7 of the Contractors Debts Act 1997.
The debt certificate directs the principal to pay the claimant's judgement debt from any money that may be due to the main contractor. The clerk of the court will require the claimant to provide details of the principal and evidence that the work or goods the subject of the claimant's claim is part of or incidental to the work under the main contract.
it is strongly recommended that the claimant seek legal advice before taking this course of action.
How do I find the Forms?
Click here to view the relevant forms.