Security of Payment insight #5: Adjudication determinations and enforcement
Adjudication determinations and enforcement
Under section 21(3) of the Act, adjudication determinations are due 10 business days after the adjudication response is submitted. The adjudicator must determine the amount of the progress payment to be paid, the date on which the payment is due and the rate of interest. The determination must be in writing, provide reasons and be served on the parties (section 22(3)).
Often the adjudicator will direct that the claimant is to pay the adjudicator’s fee to release adjudication determination. An alternative is that the adjudicator directs both parties to pay his or her fees before the determination is released. Once the determination is released, there may be a separate direction for a particular party to compensate the other for fees.
If the claimant is awarded money in the determination, it is usual for the claimant to issue an invoice to the respondent for the determined amount. Time for payment will be as determined by the adjudicator or 5 business days (s 23(1)).
If monies are unpaid, the claimant can ask the relevant authorised nominating authority to provide an “adjudication certificate” which can then be filed as a judgment debt, although an affidavit needs to accompany that application to the court setting out that the monies have been unpaid.
Once the determination has been effected as a judgment debt, enforcement proceedings can be commenced (e.g. the claimant could seek a garnishee order from the respondent’s bank accounts).