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Standard fact sheet.

Enforcing payment 

What if the respondent fails to pay the adjudication amount? 

The claimant can ask the Authorised Nominating Authority (ANA) to provide an adjudication certificate. The claimant can then obtain a judgment debt by filing the following documents with the court:

  • the adjudication certificate
  • the 'Registration/filing of certificate of judgment or order' form, and
  • an affidavit.

The affidavit must state that the whole or any part of the adjudicated amount has not been paid at the time the certificate is filed. The affidavit must be sworn or affirmed before a Justice of the Peace or solicitor. Fees will be payable to the ANA and the court. The court will then give the claimant a certificate of judgment.

The judgment debt is enforceable in the same way as any court judgment, without the need for the court to decide the matters in dispute. Access court documents and forms online in our Related information section.  

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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
  • interest on any unpaid progress payment from the date due to the date of the certificate.

Where to start your case is determined by the amount claimed:

  • up to $10,000: the Small Claims Division of the Local Court
  • more than $10,000 and up to $100,000 (or $120,000 in some limited circumstances): the General Division of the Local Court
  • above $100,000 (or $120,000 in some limited circumstances): the District Court or the Supreme Court.

There is no need to issue a summons. If the respondent wishes to stop enforcement of the judgment, they must make an application to the court to set aside the judgment. To do so, the respondent must pay into court as security the unpaid portion of the adjudicated amount. This eliminates any advantage the respondent may have had by retaining the disputed amount while legal proceedings were in progress.

If the respondent makes an application to set aside the judgment for the adjudicated amount, the claimant will usually need a solicitor to help them oppose it.

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Can I exercise a lien? 

Once a progress payment becomes due and payable, the claimant is entitled to exercise a lien over any unfixed plant or materials supplied by the claimant for use in 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 then the balance must be paid to the respondent. If you, the respondent, have failed to pay the adjudicated amount, a lien is one way of recovering some or all of the money you are owed.

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Can I use the Contractors Debts Act to recover payment? 

The claimant may also use the Contractors Debts Act 1997 where they are a subcontractor doing work for or providing goods to a head contractor who has been engaged by a principal. When lodging the adjudication certificate, the claimant would ask the court for a debt certificate under section 7 of the Contractors Debts Act 1997.

The debt certificate directs the principal to pay the claimant's judgment 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 between the head contractor and the principal. It is strongly recommended that the claimant seek legal advice before taking this course of action. Access forms online for the Contractors Debts Act 1997 from our Related information section.   

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