Western Australian Current Acts

CONSTRUCTION CONTRACTS (FORMER PROVISIONS) ACT 2004 - SECT 31

31 .         Adjudicator’s functions

        (1)         In this section —

        prescribed time means —

            (a)         if the appointed adjudicator is served with a response under section 27(1) — 10 business days after the date of the service of the response;

            (b)         if the appointed adjudicator is not served with a response under section 27(1) — 10 business days after the last date on which a response is required to be served under section 27(1).

        (2)         An appointed adjudicator must, within the prescribed time or any extension of it made under section 32(3)(a) —

            (a)         dismiss the application without making a determination of its merits if —

                  (i)         the contract concerned is not a construction contract; or

            (ia)         the applicant gives written notice, to the adjudicator and each other party to the dispute, that they wish to withdraw the application; or

                  (ii)         the application has not been prepared and served in accordance with section 26(1) and (2)(b) and (c); or

            (iia)         the application has not been prepared in accordance with section 26(2)(a), unless the adjudicator is satisfied that the application complies with section 26(2)(a) sufficiently for the adjudicator to commence adjudicating the dispute; or

                  (iii)         an arbitrator or other person or a court or other body dealing with a matter arising under a construction contract makes an order, judgment or other finding about the dispute that is the subject of the application; or

                  (iv)         satisfied that it is not possible to fairly make a determination because of the complexity of the matter or the prescribed time or any extension of it is not sufficient for any other reason;

            (b)         otherwise, determine on the balance of probabilities whether any party to the payment dispute is liable to make a payment, or to return any security and, if so, determine —

                  (i)         the amount to be paid or returned and any interest payable on it under section 33; and

                  (ii)         the date on or before which the amount is to be paid, or the security is to be returned, as the case requires.

        (2A)         Without limiting subsection (2)(b), an appointed adjudicator may, with the consent of the parties, make a determination under subsection (2)(b) in terms agreed to by the parties.

        (3)         If an application is not dismissed or determined under subsection (2) within the prescribed time, or any extension of it made under section 32(3)(a), the application is to be taken to have been dismissed when the time has elapsed.

        [Section 31 amended: No. 55 of 2016 s. 12.]