Part of a comprehensive analysis of the COVID-19 (Temporary Measures) Act 2020
All Parts in This Series
- PART 1
- PART 2
- PART 2
- PART 3
- PART 4
- PART 5
- PART 6
- PART 7
- PART 8
- PART 8
- PART 8
- PART 8
- PART 9
- PART 10
- PART 10
- Part 10 (this article)
- Part 10
Appointment and Powers of the Part 10A Registrar and Deputy Registrars
The COVID-19 (Temporary Measures) Act 2020 establishes the role of the Part 10A Registrar to oversee specific procedural matters under Part 10A of the Act. The Minister is empowered to appoint the Part 10A Registrar and may also appoint Deputy Registrars to assist in carrying out the Registrar’s functions. This structure ensures that the administrative and adjudicative functions under Part 10A are efficiently managed and that there is sufficient delegation of authority to handle the volume and complexity of cases.
"(1) The Minister is to appoint a Part 10A Registrar for the purposes of this Part. (2) The Minister may in addition appoint Part 10A Deputy Registrars. (3) Subject to regulations made under section 79K, all the powers and duties conferred and imposed on the Part 10A Registrar may be exercised by a Part 10A Deputy Registrar. (4) The Part 10A Registrar may, in any particular case, extend the time for service of any document under this Part or any regulations made under section 79K." — Section 79D
Verify Section 79D in source document →
This provision exists to provide a clear chain of authority and flexibility in administration. By allowing Deputy Registrars to exercise the Registrar’s powers, the Act ensures continuity and responsiveness in handling applications and procedural matters. The power to extend time for service of documents recognizes the practical difficulties parties may face, especially under the disruptions caused by the COVID-19 pandemic, thereby promoting fairness and procedural justice.
Appointment of Part 10A Assessors and Their Role
To facilitate determinations under sections 79G and 79H, the Minister must appoint a panel of Part 10A assessors. These assessors are specialists who possess the requisite qualifications and experience to adjudicate on disputes relating to contract sum adjustments under the construction contracts affected by the pandemic.
"The Minister must appoint a panel of Part 10A assessors comprising such number of persons who satisfy the requirements prescribed for the purposes of this section, for the purpose of making the determinations in sections 79G and 79H." — Section 79E
Verify Section 79E in source document →
This provision ensures that decisions on contract sum adjustments are made by qualified and impartial experts, thereby enhancing the credibility and fairness of the dispute resolution process. The panel system also allows for scalability and specialization in handling multiple cases.
Application Process for Contract Sum Adjustment
Section 79F outlines the detailed procedure for a party (“A”) to apply to the Part 10A Registrar for the appointment of an assessor to adjust the contract sum under section 79C(2). The application must be made within the prescribed time, in the prescribed form and manner, and must be accompanied by:
- Evidence of a reasonable attempt to negotiate with the other party (“B”);
- Any other prescribed information;
- The prescribed fee, which may vary depending on the application.
"(1) A may, within the prescribed time, apply in the prescribed form and manner to the Part 10A Registrar to appoint a Part 10A assessor to adjust the contract sum for the purpose mentioned in section 79C(2). (2) An application under subsection (1) must be accompanied by — (a) evidence that A had made a reasonable attempt to negotiate with B for the adjustment; (b) any other information that may be prescribed by regulations made under section 79K; and (c) the prescribed fee. (2A) For the purpose of subsection (2)(c), different fees may be prescribed for different applications." — Section 79F(1)-(2A)
Verify Section 79F in source document →
This procedural framework exists to encourage parties to resolve disputes amicably before resorting to formal adjudication, thereby reducing the burden on the adjudicative system. The requirement for prescribed information and fees ensures that applications are complete and that administrative costs are covered.
Service and Notification Requirements
Upon making an application, the applicant must serve copies of the application within the prescribed period to all relevant parties, including:
- The other party to the construction contract;
- Any guarantor, surety, or issuer of performance bonds related to the contract;
- Any assignee of any party to the contract.
"(3) A copy of the application under subsection (1) must be served by A within the period specified in the regulations made under section 79K on — (a) B and any other party to the construction contract; (b) any person who is A’s guarantor or surety, or who has issued any performance bond or equivalent, in relation to the carrying out of the construction works under the construction contract; and (c) any assignee of any other party to the construction contract." — Section 79F(3)
Verify Section 79F in source document →
This service requirement promotes transparency and ensures that all interested parties are informed of the application, allowing them to participate or respond as necessary. It also prevents any party from being blindsided by decisions affecting their contractual or financial interests.
Powers of the Part 10A Registrar in Handling Applications
The Part 10A Registrar holds significant powers to manage the application process effectively. These include the authority to request further information from the applicant, reject incomplete or non-compliant applications, and appoint assessors to determine valid applications.
"(4) The Part 10A Registrar may, for the purposes of deciding whether to appoint a Part 10A assessor to determine an application, request A to provide further information within the time specified by the Part 10A Registrar. (5) The Part 10A Registrar may reject an application if — (a) the application is incomplete or otherwise not made in accordance with subsections (1) and (2); (b) A fails to satisfy the Part 10A Registrar that subsection (3) is complied with; (c) A fails to comply with the Part 10A Registrar’s request under subsection (4); (d) the Part 10A Registrar reasonably suspects that any information provided by A to the Part 10A Registrar is false or misleading in a material particular; or (e) it appears to the Part 10A Registrar, from the application or any information provided by A in subsection (4), that — (i) the case is not one to which this Part applies; or (ii) the application is frivolous or an abuse of process. (6) Unless the Part 10A Registrar rejects an application under subsection (5), the Part 10A Registrar must appoint a Part 10A assessor to determine the application and must serve a notice of the appointment on A and on all the parties mentioned in subsection (3)." — Section 79F(4)-(6)
Verify Section 79F in source document →
These powers serve to maintain the integrity and efficiency of the adjudication process. By filtering out incomplete, non-compliant, or frivolous applications, the Registrar ensures that only meritorious cases proceed, thereby conserving resources and upholding procedural fairness. The ability to request additional information allows the Registrar to make informed decisions and avoid premature or erroneous appointments of assessors.
Cross-References and Regulatory Framework
The powers and procedures under Part 10A are subject to regulations made under section 79K. These regulations prescribe details such as fees, forms, timelines, and other procedural matters. The Act’s reliance on these regulations allows for flexibility and adaptability in response to evolving circumstances, particularly important during the COVID-19 pandemic.
"Subject to regulations made under section 79K, all the powers and duties conferred and imposed on the Part 10A Registrar may be exercised by a Part 10A Deputy Registrar." — Section 79D(3) "(2) An application under subsection (1) must be accompanied by ... (b) any other information that may be prescribed by regulations made under section 79K; ..." — Section 79F(2)(b) "(3) A copy of the application under subsection (1) must be served by A within the period specified in the regulations made under section 79K on ..." — Section 79F(3)
Verify Section 79D in source document →
The regulatory framework ensures that the Act remains practical and responsive, allowing procedural details to be updated without the need for legislative amendments. This is particularly critical in managing the dynamic challenges posed by the pandemic on construction contracts and related disputes.
Absence of Definitions and Penalties in Part 10A
The text of Part 10A does not explicitly provide definitions for terms used within this Part, nor does it specify penalties for non-compliance with its provisions. This suggests that either definitions are provided elsewhere in the Act or that the Part relies on commonly understood legal and contractual terminology. The absence of penalties indicates that the Part primarily governs procedural mechanisms rather than imposing punitive measures, focusing on facilitating dispute resolution rather than enforcement.
No definitions are provided in the text of Part 10A Registrar. — [No section] No penalties are mentioned in the text of Part 10A Registrar. — [No section]
Verify source in source document →
This design reflects the Part’s purpose as a procedural framework to assist parties in adjusting contract sums and resolving disputes arising from the COVID-19 disruptions, rather than a punitive regime.
Conclusion
Part 10A of the COVID-19 (Temporary Measures) Act 2020 establishes a structured and flexible framework for the appointment of Registrars and assessors, the application process for contract sum adjustments, and the procedural safeguards necessary to ensure fairness and efficiency. The provisions are carefully crafted to encourage negotiation, ensure transparency, and provide expert adjudication, all within a regulatory framework that can adapt to changing circumstances. This framework is essential to mitigating the impact of the pandemic on construction contracts and maintaining stability in the construction industry.
Sections Covered in This Analysis
- Section 79D – Appointment and Powers of Part 10A Registrar and Deputy Registrars
- Section 79E – Appointment of Panel of Part 10A Assessors
- Section 79F – Application Process for Appointment of Part 10A Assessor
- Section 79K – Regulations (referenced for procedural details)
Source Documents
For the authoritative text, consult SSO.