Prescribed appointors and adjudicators using the CCA

Relevant legislation:

• Construction (Former Provisions) Contracts Act 2004 (the CCA).
• Construction Contracts Regulations 2004 (the Regulations)

Find a prescribed appointor

The Regulations provide that for the purposes of the definition of 'prescribed appointor' in section 3 of the CCA Act, the persons listed below are prescribed and active:

Adjudicate Today Pty Ltd – ABN 39 109 605 021

Address: Level 28, AMP Tower, 140 St Georges Terrace, PERTH WA 6000 
Website:  www.adjudicate.com.au
Phone: 1300 760 297 
Fax: 1300 760 220 
Email:  wa@adjudicate.com.au

Application/Appointment fee: $Nil

Fixed fees, and where appointed by Adjudicate Today and at the request of the applicant:

Above $40,000, and where appointed by Adjudicate Today:

When appointed by agreement of the parties, the hourly rate is that nominated by the adjudicator on the Building and Energy website.

Only experienced adjudicators are appointed Grade 2 or Senior. The majority of small value claims are completed in 12 hours or less however large claims; multiple claims; claims in which the respondent argues the dispute is outside the jurisdiction of the Act and/or raises other complex legal arguments; poorly presented claims or responses; or claims in which parties request conferences or inspections can exceed 12 hours.

It is wrong to assume that senior adjudicators will necessarily be more expensive. Our practical experience is that the more senior the adjudicator, the less time is required to finalise a determination. Adjudicators do not bill for a minimum number of hours. Only actual hours worked are billed.

The adjudicator pays Adjudicate Today a service fee which includes the cost of processing and administration of adjudication matters, collecting fees, paying of staff, overheads for 7 offices across Australia and the promotion of security of payment Acts and adjudication generally. The service fee is one-third of the adjudicator's fee and is paid by the adjudicator from the adjudicator fee. It is not an additional fee to parties. An Adjudicate Today adjudicator does not bill extra time to cover the cost of the service fee or for administrative time.

Australian Institute of Building – ABN 38 794 377 472

c/- Level 3, 500 Hay Street, SUBIACO WA 6008 
Website:  www.aib.org.au
Mobile: 0415 650 835 
Contact: D Humphry 
Email:  waadjudications@aib.org.au

AIB rate to appoint an adjudicator $220.00 including GST

Note: Where the Australian Institute of Building appoints a registered adjudicator from its panel to adjudicate a payment dispute with a dispute value within the designated ranges set out in the schedule below, the amount payable to the appointed adjudicator for adjudicating the dispute will not exceed the maximum fee stated in the schedule commensurate with the value of the payment dispute.

For payment disputes with a value greater than $20,000.00 (including GST), the cost of the adjudication will be in accordance with the provisions of section 44 of the CCA.

Master Builders Association of Western Australia (Union of Employers) – ABN 83 590 927 922

Construction House
Level 3, 35-37 Havelock Street 
Website: www.mbawa.com
West Perth WA 6005 
Phone: (08) 9476 9800 
Fax: (08) 9476 9801 
Email:  mba@mbawa.com

Rates:  
A flat fee of $250.00 (plus GST) to appoint an adjudicator regardless of the size of the claim. This fee is to be paid in advance of a nomination of an adjudicator.

For postal applications please include a cheque payable to “Master Builders Association".

(Association members can opt to be invoiced for the nomination).

Resolution Institute – ABN 69 008 651 232

(Replaces the Institute of Arbitrators and Mediators Australia (IAMA)) 
Kings Park Business & Secretarial Services 
44 Kings Park Road, WEST PERTH WA 6005 
Website: www.resolution.institute
Phone: (08) 6278 2022 
Fax: (02) 9251 3733 
Email: nominations@resolution.institute

Appointment rate $Nil

Resolution Institute is the peak industry body and a not-for-profit membership association for dispute resolution disciplines and has been a prescribed appointor in WA since the Construction Contracts Act came into operation in 2005. Member Adjudicators appointed by Resolution Institute pay a contribution of 15 per cent of their fee to Resolution Institute to support its purpose to promote and foster the use of dispute resolution and develop and support high standards of professional practice. This contribution is included, not in addition to, the fees set by Resolution Institute Adjudicator members and published on this website. It is not an additional fee charged to parties.

RICS Australasia Pty Ltd – ABN 18 089 873 067

c/- RICS Australasia (Dispute Resolution Service) 
Suite 317, 60 Martin Place, Sydney NSW 2000 
Website: www.rics.org/drsoceania
Phone: 1300 953 459 
Fax: 1300 953 529 
Email: drsaus@rics.org

Rates:

• $220.00 including GST for claims up to $200,000 including GST
• $330.00 including GST for claims over $200,000 but not exceeding $500,000 including GST
• $440.00 including GST for claims over $500,000 but not exceeding $1 million including GST
• $660.00 including GST for claims above $1 million including GST

The applicable fee is required to be paid with the adjudication application. A nomination fee of 10% of the adjudicator's fee applies to adjudicators who accept nominations from RICS' Dispute Resolution Service.

The Electrical and Communications Association of Western Australia Inc – ABN 19295806769

c/- NECA (Union of Employers)
Unit 18, 199 Balcatta Road, Balcatta WA 6021
PO Box 782, Balcatta WA 6914 
Website: www.neca.asn.au/wa
Ph: 08 6241 6100 
Fax: 08 9240 4866 
Email: ccaadjudications@necawa.asn.au

Rates: 
A flat fee of $200.00 plus GST applies regardless of claim size. The appointment fee will be waived for members of NECA WA.

Prescribed appointors' responsibilities

Practice directions

Confidentiality: A prescribed appointor must keep confidential the identities of the parties to the adjudication.

Conflict of interest: A prescribed appointor must ensure the adjudicator does not have a conflict of interest. This should be confirmed prior to appointing an adjudicator. If a conflict of interest exists, the prescribed appointor must select another adjudicator.

Fees

Setting fees: Prescribed appointors may set their own fees. The fees to be charged must be notified to the Building Commissioner and will be published on the department's website and related publications. A prescribed appointor should ensure that fees to be charged are readily available to the public through the prescribed appointor's own publications.

Collecting fees: A prescribed appointor may require a deposit against the likely fees before arranging an appointment.

Responsibility to update contact details

Prescribed appointors must ensure that the Building Commissioner is kept informed of changes to their contact details so that service of requisite documents can be effected and parties to a payment dispute have their legal rights preserved i.e. that the strict time frames in the Act are met.

Reporting requirements

All documents required under these reporting requirements are to be emailed to the Building Commissioner at cca@dmirs.wa.gov.au in Microsoft Word 97 format or equivalent.

Notification of receipt of application for adjudication: From 1 July 2020, where a prescribed appointor receives an Application for adjudication – Form 2 and appoints an adjudicator to determine the application, the prescribed appointor will need to provide certain information to the Building Commissioner in the form of a Form 3.

The information collected by the Building Commissioner is used for the purposes of preparing an annual report on the operation and effectiveness of the Act each financial year to the Minister for Commerce.

All information required in the Form 3, should be contained in the adjudication application, but, to the extent it is not, appointors are not expected to have to make their own enquiries to ascertain the information.

An outline of the reporting requirements utilising the Form 3 are as follows:

• For each application and appointment made by an appointor under the Act, the Form 3 needs to be completed and provided to the Building Commissioner.
• The Form 3 must be completed and provided either on the date the appointment is made by the appointor, or within one business day of the appointment.
• The Form 3 must be forward by email to cca@dmirs.wa.gov.au. Please do not send a hard-copy.
• Where multiple applications are received involving payment disputes between the same parties, a Form 3 needs to be completed and provided for each of the applications.
• Appointed adjudicators will still be required to communicate to the Building Commissioner a copy of their determination, dismissal, or notice of any withdrawal (as the case may be) and their invoice for fees.

Section 28 of the CCA applies to the conduct of all appointments.

Form 3 - Notice of appointment

Find an adjudicator

Below is a list of adjudicators who are currently registered under the CCA to review and determine construction contract payment disputes in Western Australia.

Register of adjudicators

Adjudicators' responsibilities

The CCA requires adjudicators to comply with the principles set out in the code of conduct and the practice guidelines for adjudicators which have been established by the Building Commissioner.

Practice directions

Professional conduct

As an adjudicator you must:

• conduct yourself in a professional manner and as a fit and proper person, with the capacity/competence to carry out the role of adjudicator;
• operate within the  code of conduct for adjudicators, guidelines established by, and updated from time to time, by the Building Commissioner. Agreement to comply with these instruments is a condition of registration;
• demonstrate/maintain competence to adjudicate a payment dispute effectively; and
• keep up to date with new developments and precedents relevant to the Act.

Confidentiality

Payment issues may be disputed without either party being in default or acting unreasonably. Contractual arrangements are private between the parties and, except where required by law, these arrangements should not be made public without the consent of the parties.

As an adjudicator you must:

• ensure that confidentiality is observed in relation to the identities of the parties to the adjudication and information which is identified in a determination as not suitable for publication;
• avoid engaging in publicity in relation to the conduct of adjudications;
• where appropriate, seek advice regarding certain aspects of disclosure if you are uncertain about the issues; and
• only include in the determination information that is needed to explain the basis of any decision.

Conflict of interest

In most cases, an adjudicator will not be aware of the parties to the dispute nor the nature of the dispute until the claimant's papers are lodged. You should review the papers as soon as possible to see if there is any conflict of interest, so that the process is not delayed.

When seeking to appoint an adjudicator, prescribed appointors should informally canvass your suitability as a prospective adjudicator about issues such as availability, expertise and conflict of interest before making a formal appointment. Once a formal appointment has been made, you and the parties are bound to follow the processes in the Act. The Act provides that you must disqualify yourself if there is a material personal interest in the payment dispute or in the construction contract under which the dispute has arisen or in any party to the contract.

Where it becomes necessary, disqualification of an appointed adjudicator must occur in accordance with the Act. This includes the need for the applicant to lodge a new Application for adjudication.

Fees

Setting fees

While you can set your own fees, the Building Commissioner must be notified in a format specified by the Building Commissioner. These fees will be published on our website and related publications. You should ensure that information about fees to be charged, including whether they are an hourly rate or lump sum, is readily available to the public through your own publications and those of any prescribed appointor with whom you are associated.

Collecting fees

You may request a deposit against the likely fees before commencing a determination and may seek further deposits during the proceedings. You can also hold back a determination until the fees have been paid.

In general, the claimant will provide the initial deposit, and any further deposits, as the claimant will have the greatest interest in the dispute being adjudicated as quickly as possible. Alternatively, the parties could agree among themselves to pay deposits in equal shares, or for a respondent to pay the fees.

You must allow for the fees in making a determination. If the claimant has paid all the deposits during the adjudication period, then half the costs should be added to any payment awarded in a determination. Where a claimant paid all the deposits but has failed to support a claim for a payment under the contract, the determination will still require payment of half the costs from the respondent to the claimant.

Where an adjudication is dismissed without a determination, the Act prescribes that costs must be shared. It is the applicant’s responsibility to recover costs against the respondent.

Expert fees and disbursements

The Act allows for you to appoint an expert or arrange testing. Where possible, you should give early advice of the need to appoint an expert, or to incur other disbursements such as for testing. In suggesting an expert or additional testing, you should be mindful of the costs involved and ensure the fees or disbursements are known to the parties, are reasonable and are in proportion with the value of the matter to be determined.

Where an adjudication is dismissed without a determination or the matter lapses, you have a discretion to take fees and costs out of the deposit. The applicant could then take action in another forum to recover half such costs from the respondent. It should be noted that the Building Commissioner will have no involvement in facilitating such recovery.

Conduct of adjudications

Principles

The Act allows you to conduct proceedings as you see fit. Adjudicators should conduct proceedings that are quick, inexpensive, independent, and in accordance with the Act to ensure payments are not held up in the contracting chain.

Your role is effectively that of a statutory contract administrator, considering claims for payment and determining how much should be paid.

Claims and responses

Ideally, an application for adjudication should consist of:

• an Application for adjudication – Form 2;
• a copy of the relevant contract provisions;
• the contractor's original claim for payment under the contract;
• the principal's notice rejecting or modifying the claim, or a contract administrator's payment certificate where the amount to be paid differs from the claim, plus any reasons given or relevant correspondence; and
• any argument or discussion refuting the principal's position, or supporting the contractor's position, on which the applicant making the application for adjudication will seek to rely.

Ideally a response to an application for adjudication should consist of:

• a Response to an application for adjudication – Form 4;
• any claim that the dispute is not covered by the Act, has already been determined, or that the adjudicator has a conflict of interest or the claim is too complex to be dealt with by rapid adjudication, with supporting reasons or evidence;
• any claim that the contract provisions supplied by the claimant are incomplete or incorrect, together with supporting evidence; and
• any argument or discussion refuting the claimant's position or supporting the principal's position.

In practice it is likely that some information may be lacking or unclear, and you may wish to obtain further information from the parties. In seeking further information, you should avoid unnecessary cost or delay while still maintaining the necessary degree of procedural fairness.

Making determinations

Reviewing the conduct of the parties

It is up to the contractor to make a proper claim for payment under the contract and to provide the principal or contract administrator with sufficient information to assess the claim. A principal or contract administrator who rejects a claim, or part of a claim, for lack of supporting detail may well be acting reasonably. A contractor who ignores a reasonable request for more information and instead makes an Application for Adjudication may well be acting unreasonably.

General disclosure

You should keep all parties to the adjudication informed about matters relevant to the adjudication and progress on significant issues affecting the adjudication. This includes advising both parties of any previous association with either party or any other matter which could possibly give rise to a conflict of interest.

Responsibility to update contact details

You must ensure that any relevant prescribed appointor and the Building Commissioner are kept informed of changes in your contact details so that service of requisite documents can be effected and parties to a payment dispute have their legal rights preserved i.e. that the strict time frames in the Act are met.

Home Building Contracts

In contracts covered by the Home Building Contracts Act 1991 where there is a marked imbalance of knowledge/expertise and resources between a potential claimant and respondent (home owner), you should make yourself aware of the potential imbalance and take this into account to preserve the fundamental principles behind the dispute resolution process.

If it is clear from the response that the respondent has not understood the basis of the claim or the process, you should consider a hearing or other additional requests for information to assist the respondent in the claim.

Reporting requirements

All documents required under these reporting requirements are to be emailed to the Building Commissioner at cca@dmirs.wa.gov.au(link sends email) in Microsoft Word 97 format or equivalent.

Notification of receipt of Application for Adjudication

Following receipt of an Application for adjudication – Form 2 you may be required as the adjudicator to provide to the Building Commissioner with certain information with regard to your appointment as the adjudicator and the contents of the adjudication application. Whether you, as the adjudicator, need to report this type of information to the Building Commissioner will depend upon whether you were appointed as the adjudicator by the parties or appointed by a prescribed appointor.

Appointed by a prescribed appointor

From 1 July 2020, if you are an adjudicator and are appointed by a prescribed appointor to determine an adjudication application, then it will be the responsibility of the appointor (not the adjudicator) to provide the Building Commissioner with the particulars of both your appointment and the adjudication application. The appointor will be required to do so in the form of a Form 3.

Appointed by the parties

From 1 July 2020, if you are an adjudicator who has been appointed directly by the parties under a construction contract (in other words, you have not been appointed by a prescribed appointor), then you will need to provide the Building Commissioner with a Form 3.1.

The Form 3.1 requires you to fill out a number of particulars with regard to the adjudication application and your appointment as the adjudicator under the construction contract, including:

• the name of the adjudicator;
• the names of the parties;
• the payment claim amount;
• the location of works/related goods and services; and
• the business activity of the applicant and the respondent.

An outline of the reporting requirements utilising the Form 3.1 are as follows:

• For each application and appointment of an adjudicator made pursuant to a construction contract under the Act, the Form 3.1 needs to be completed and provided by the appointed adjudicator to the Building Commissioner.
• The Form 3.1 must be completed and provided either on the date the appointment is accepted, or within one business day of the appointment.
• The Form 3.1 must be forward by email to cca@dmirs.wa.gov.au(link sends email). Please do not send a hard-copy.
• Where multiple applications are received involving payment disputes between the same parties, a Form 3.1 needs to be completed and provided for each of the applications.
• Once the Form 3.1 is provided, a file number will be supplied that can be quoted in future correspondence.
• Appointed adjudicators will still be required to communicate to the Building Commissioner a copy of their determination, dismissal, or notice of any withdrawal (as the case may be) and their invoice for fees.

Adjudication identification number

The numbering system to be used to identify each adjudication is as follows:

• The Building Commissioner will provide you with a registration number on registration e.g. Ford Prefect = Adjudicator 01. This number will be printed on your Certificate of Registration.
• On receipt of an application for adjudication lodged by any party, you should allocate an adjudication identification number by listing the adjudicator's registration number e.g. 01, plus the year e.g. 05 = 2005, plus your job number for that year.

If your registration number is 15, the year is 2012 and the job is the 17th for that year the adjudication identification number will be allocated as follows: 15-12-17.

The adjudication identification number must be added to all forms used pursuant to the Act (including the Application for adjudication – Form 2 and Response to an Application for adjudication – Form 4) and quote it on any written correspondence you have with the parties, as well as the Building Commissioner.

Please note: Where, on review, a decision to dismiss an application for adjudication is set aside and the State Administrative Tribunal reverses the dismissal, and you are required to make a determination within 14 days of the reversal, the same adjudication identification number will continue to be used and should be included in any determination.

Notification of dismissal of application for adjudication

Where you dismiss an application for adjudication, you must notify the Building Commissioner of the decision with written reasons for the dismissal.

Notification of determinations

The adjudicator must provide the Building Commissioner with a signed original copy of the determination you made and the written reasons for determinations within 24 hours of providing the determination to the parties.

You should identify any information in the determination that is unsuitable for publication because of its confidential nature.

Where required by a party, the Building Commissioner will endorse the party's copy of the determination with a certificate required under section 43(2)(a) of the CCA.

Downloads

• Form 2 – Application for adjudication
• Form 3 – Notice of appointment
• Form 3.1 – Notice of appointment (for adjudicators appointed under the CCA)
• Form 4 – Response to application for adjudication