Adjudication pitfalls #3: Business days – getting them right.
A parties success in adjudication can often hinge on getting basic things correct and one area that can be easy to overlook is the correct counting of business days.
*Disclaimer*:It should be noted that the following information does not constitute professional legal advice or guidance. Readers should consult their legal representation before acting on any of the content presented below.
What is a business day?
A business day is defined in the Australian Acts Interpretation Act (1901) in Section 2B. The definition reads:
“business day ” means a day that is not a Saturday, a Sunday or a public holiday in the place concerned.
So essentially a business day is Monday-Friday of any given week, minus public holidays.
There may be some confusion around public holidays, particularly public holidays in regional centers (for example, a region-specific show day). In this case it is advisable to get professional advice on whether to exclude such days as business days.
Why are business days important?
The Building and Construction Industry Security of Payment Act [NSW] (“BCISOPA”) sets out mandatory minimum time frames for serving key documents when a dispute has gone, or is going to, adjudication.
The time frames are usually stated in terms of business days.
Knowing when a timeframe begins and ends can often be a critical factor in determining an adjudicators jurisdiction.
Serve a key document too early or too late, and your adjudication document – be it an adjudication application, payment claim or payment schedule – may be considered invalid and therefore not considered by the nominated adjudicator.
How to count a business day.
Counting business days may seem more confusing than it really should be but essentially, the first business day of any time frame stated in BCISOPA is the first business day after an event relevant to the act occurs.
For instance, if a claimant serves a payment claim on respondent on a Monday, the first valid business day is the next business day – in this case Tuesday (assuming Tuesday is not a public holiday).
Special days
Each bit of security of payment legislation in Australia has its own quirks, and some acts specifically exclude certain days during the year.
Parties to a dispute should consult the business day definition in each act to find out what other days may be excluded.
In the case of the New South Wales BCISOP Act, the definition includes the week between Christmas and New Years.
“business day” means any day other than:
(a) a Saturday, Sunday or public holiday, or
(b) 27, 28, 29, 30 or 31 December.
This clause is located in Section 4: Definitions of the relevant legislation.
This means that potentially claims served just before Christmas mean the that respondents may have longer to respond with a payment schedule than they typically would due to the exclusion of specific days in December.
Guidance
We understand this may be confusing so if you need some guidance, you’re welcome to get in contact with our office to talk it through.
- Contact the ABC DRS about business day calculation.
- Receive specialist training in adjudication, security of payment and how to deal with construction disputes.
Other posts in our adjudication pitfalls series