Options for claimants after adjudication
If a payment dispute is referred to an adjudicator, the adjudicator may determine that the respondent must pay an amount (the 'adjudicated amount') to the claimant. If you are a claimant and the respondent fails to pay the adjudicated amount on time, you have the following options.
Go to court to recover the adjudicated amount
You can recover the adjudicated amount by filing an adjudication certificate and supporting affidavit in the appropriate court. The adjudication certificate is available from the Authorised Nominating Authority (ANA) to which the adjudication application was made. The adjudication certificate sets out the names of the parties, the amount payable and the date on which it was due to be paid. The affidavit attests to the fact that the amount is still outstanding.
The adjudicated amount will become a judgment debt, which is enforceable in the same way as any court judgment. Fees may be payable to the ANA for the adjudication certificate and to the court for registration of the debt.
Recovery from the principal
If the adjudicated amount is for work, goods or services that are incidental to or part of a contract between the respondent and a third party (the principal), you may recover the adjudicated amount from the principal. This option is not available in relation to a domestic building contract with a building owner, unless the building owner is in the business of building residences.
To recover payment from the principal, you must obtain an order from a court for the adjudicated amount. The court will issue a Debt Certificate, which must be served on the principal with a Notice of Claim. The Notice of Claim and Debt Certificate must be in the prescribed forms, which are set out in the Building and Construction Industry Security of Payment Regulations 2023.
Service of the Notice of Claim assigns to you the debt owed by the principal to the respondent. The principal must then pay you the money that they owe the respondent until the debt is discharged, or until the principal is no longer required to pay the respondent. If the principal fails to make the payment as required, you may sue for recovery of the debt.
Until the debt is paid, you retain the right to suspend work or the supply of goods and services and to exercise a lien over unfixed plant and materials.