Contractual Adjudication
Adjudication under the BDT Adjudication Rules provides parties to a dispute with a cost-effective and robust dispute resolution process that results in a determination being made by an independent adjudicator, typically within 35 working days. This process is suitable where statutory CCA Adjudication is not available and/or the parties agree to use this process.
Process Overview
Starting the process
Parties need to agree to use the process. They can do this before or after the dispute has arisen. (If the parties do not agree and the dispute relates to a construction contract, then any party may start CCA Adjudication instead)
Appointment of an Adjudicator
BDT will nominate an adjudicator, and the parties will be notified of the appointment. The date this is done is the Commencement Date.
Claim
The Claimant must serve the Claim within 5 working days of the Commencement Date
Response
The Respondent may serve a Response to the Claim within 10 working days of the Commencement Date.
Reply
If a Response is served, the Claimant may serve a Reply within 15 Working Days of the Commencement Date.
Rejoinder
If a Reply is served, the Respondent may serve a Rejoinder within 18 working days of the Commencement Date.
Determination
The Adjudicator’s decision is called a Determination. It will typically be issued within 25 working days of receipt of the Response. (i.e. typically within 35 working days of the Commencement Date).
Step 1. Starting the process
To start the process, the parties need to agree to refer their dispute to adjudication.
They can do this by entering into an adjudication agreement. This agreement will provide for the dispute to be determined under the BDT Adjudication Rules.
Alternatively, if the parties’ agreement incorporates the BDT model adjudication clause and was entered into before the dispute arose, the Claimant will need to serve a Notice of Adjudication on the other parties to notify them that the process is being started. This is not required if the parties signed an adjudication agreement after the dispute arose.
BDT will use its best endeavours to appoint a suitably qualified and independent adjudicator within 3 working days after receiving the adjudication agreement or the notice of adjudication.
The appointment will take into account any criteria agreed by the parties, the nature and value of the dispute, the number of parties, their location, and languages, the availability of prospective adjudicators, and any other information provided by the parties or relevant to the case.
The parties may agree to nominate an adjudicator. BDT will appoint that person, provided BDT’s assesses them as qualified, eligible and free of conflicts of interest.
The Registrar will communicate the appointment to the parties. That date is the Commencement Date. All dates for the process run from the Commencement Date.
Step 2. Appointment of an Adjudicator
BDT will use its best endeavours to appoint a suitably qualified and independent Adjudicator within 3 Working Days after receiving the agreement to adjudicate or the notice of adjudication.
Any appointment will take into account any criteria agreed by the parties to the dispute, the nature and value of the dispute, the number of parties, their location, and languages, the availability of any nominees, and any other information provided by the parties or relevant to the case.
The parties may also, by agreement, nominate an Adjudicator for appointment. Subject to BDT’s assessment that the nominee is qualified, eligible and free of conflicts, BDT will appoint that person.
The appointment will be communicated to the parties by the Registrar and the date of that notification will be the Commencement Date. All dates for the process will run from the Commencement Date.
Step 3. Claim
The Claimant must serve the Claim within 5 working days of the Commencement Date.
The Claim must include the following information:
- The nature and basis of the Claim;
- The amount of compensation claimed, or other relief or remedy sought, including any claim for interest;
- Copies of any expert reports, witness statements or other documents the Claimant relies on; and
- Submissions on the factual and legal issues involved in the Claim.
The Claim should clearly explain what the Claimant seeks and why they say they are entitled to it, and refer to evidence that supports that position.
Step 4. Response
The Respondent may serve a Response in answer to the Claim. A Response must be served within 10 Working Days of the Commencement Date.
The Response must include the following information:
- What matters in the Claim are accepted or agreed;
- What matters are disputed, and why;
- Any defence to the Claim;
- Copies of any expert reports, witness statements or other documents the Respondent relies on; and
- Sbmissions on the factual and legal issues involved in the Claim and the Response.
The Response allows the Respondent to clarify its position and explain which matters are in dispute, what the Respondent says the answer is, and why, and refer to evidence which supports that position.
Step 5. Reply
The Claimant may serve a Reply to the Response within 15 Working Days of the Commencement Date.
If the Claimant serves a Reply, it must be strictly in reply to the Response and cannot raise new issues. The Response may include relevant supporting documents.
Step 6. Rejoinder
If the Claimant serves a Reply, a Respondent may serve a Rejoinder within 18 Working Days of the Commencement Date.
If the Respondent serves a Rejoinder, it must be strictly in answer to the Reply and cannot raise any new issues. The Rejoinder may include any relevant supporting documents.
Step 7. Determination
An adjudicator’s decision is a ‘determination’. An adjudicator will use reasonable endeavours to issue the determination within 25 working days of the Response that is, 35 Working Days after the Commencement Date (subject to any extensions to the timetable).
The determination binds the parties in the interim. It is enforceable as a debt due unless and until the dispute is finally determined by arbitration, legal proceedings in a court or tribunal, or subsequent agreement of the parties.
The adjudicator considers the parties’ submissions and evidence. They consider the applicable law, weigh competing evidence, and apply the law to the facts as they find them.
Correction of errors (‘slip rule’)
Within two working days after the determination is given to the parties, a party may request the adjudicator to correct any errors in computation or any clerical or typographical errors of a similar nature (rule 7.22). The adjudicator will use their best endeavours to correct and reissue the determination within 3 working days after the determination was issued.
Also, the adjudicator may correct the determination on their own initiative within 3 working days after it has been issued (rule 7.25).
This process is akin to the ‘slip rule’, enabling courts and arbitrators to correct a slip or accidental omission where there is a clerical, arithmetical or mechanical error. It may not be used to vary the determination substantively, even if the error is plain on the face of the determination.
Parties should check the determination immediately and request any corrections as soon as possible so the adjudicator can consider and make any corrections within the three-working-day window.
Scrutiny of Adjudicator’s Determination
The Building Disputes Tribunal is committed to delivering the highest quality services. All determinations are scrutinised by a legally-trained person. This quality assurance process reduces the chances of errors requiring correction or explanation, providing the parties with additional reassurance in the process and outcomes. However, the determination remains that of the adjudicator, who is solely responsible for the decision-making process and the outcome.
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Phone: +64 9 486 7143
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