I am an Advanced Adjudicator for the purposes of the Building and Construction Industry Payments Act. I thought I would use this opportunity to show you some of the common mistakes I see made by applicants and explain how you can avoid falling into the same traps.
The money is not there for the asking –you have to make your case
It is a common error by applicants to think that all you have to do is file your Adjudication Application together with your invoices, the emails between you and the non-paying customer and a copy of the contract or the quote, and without more you will win. That is not the case.
Although it is true that the majority of applicants do succeed, at least to some extent, there is no presumption under the Act in favour of applicants. Even in cases where there is no response by the person receiving the Payment Claim, as the Applicant you still have to prove your case if you want the Adjudicator to find in your favour.
You need to include evidence
As I have said, to be successful the Applicant has to prove their case. For example:-
- If the customer says that the work was not actually done, you should produce photographs showing the work;
- If it is said you charged too much, you might need evidence from an experienced, reputable contractor or from a quantity surveyor, that your charges are reasonable;
- If the customer claims that the work is defective, photographs which show the quality of the work or installation might be needed, together with statements from people working on the site to say for example that the pipe was damaged when the builder’s truck ran over it.
If you do not present evidence refuting the other party’s claims for back charges, defective work and the like and the respondent does include in its response to your Application, some evidence in support of their claim, the respondent must win on that point.
It is best that any evidence by a witness be in the form of a Statutory Declaration or at the very least, a signed Statement.
Help the Adjudicator do their job
When preparing your Adjudication Application, you must remember that an Adjudicator has only a limited amount of time in which to make their decision and that most Adjudicators are doing many jobs at the same time. A large proportion for example, are practising lawyers who will have their usual case load and clients’ demands to attend to as well as do the Adjudication.
You should put all your documents together with an index and number each page. As an Adjudicator, it is amazing how many times you get a bundle of documents with no attempt at putting it together in any sort of order, not even chronological order. All this does is make it difficult for the Adjudicator and it might even colour their view of you and the strength of your claim, subconsciously or otherwise. Why make it hard for them?
Many people also do not understand that in most cases, you also need to make submissions. This is not just something for lawyers only. You should always prepare and include in your Application, a written summary of the case as you see it. It could be a simple telling of the story from beginning to end. But keep it relevant to what the Adjudicator has to decide. Don’t stray off into disputes that are not part of the Application but equally don’t leave relevant facts and information out.
Finally, particularly where there are numerous variations, back charges or allegations of defective work, it is best to prepare and provide for the assistance of the Adjudicator, a schedule in which you list each of the items claimed, the amount claimed by you for each item and the amount allowed by the respondent so that the amount in dispute is clear and easy to comprehend in summary form just by looking at the schedule. If some items are not being pursued, that fact should be noted. The schedule should also state which items have been agreed.
Sell your case to the Adjudicator
You must remember that you are trying to convince the Adjudicator to give you some money.
You have to do the convincing. It is in your interests to make it as easy as possible for the Adjudicator to find in your favour.
Working as an Adjudicator makes it easy to see where people, especially those who do not get legal advice, go wrong.