Security of Payments

“ Online Registry NSW Supreme, District and Local Courts NSW Government ProcurePoint news on Security of Payment ”

“ District Court Civil (NSW) Guide Local Court Civil (NSW) Guide ”

“ Taking good instructions When receiving instructions from the client, the use of the precedent Retainer Instructions is a very useful risk management tool. It prevents overlooking important issues and records instructions which cannot be contradicted later. ”

“ In order to successfully claim and recover progress payments, strict procedures and timelines must be followed. A complying payment claim must be made in order to activate the payment process: s 13. People who can make a payment claim include: ”

“ As previously stated s 5 provides extensive examples of ‘construction work’ and ‘supply of related goods and services’, including the following: all building work such as brick laying, foundation work, carpentry and electrical; ”

“ A person who, under a construction contract, has undertaken to carry out construction work or to supply related goods and services is entitled to receive a progress payment: s 8. This entitlement is no longer triggered by a ‘reference date’, a term that has been abolished from the Act. Instead, the ... ”

“ Once the reference date has been identified, the claimant can prepare and serve a progress claim for work performed, and related goods and services provided, up to that date. Only one progress claim can be made in respect of each reference date; however, a claimant can include an amount in a ... ”

“ A progress claim is a payment claim if it satisfies the requirements of the Building and Construction Industry Security of Payment Act 1999. It is best practice to ensure that all relevant invoices satisfy the requirements of the Act so that they operate as payment claims. This ensures that ... ”

“ The Act requires that a payment claim identify the construction work, or related goods and services, to which the progress payment relates, indicates the amount of the progress payment due, and states that it is made under the Act: section 13. For contracts entered into on or after 21 April 2014, ... ”

“ A claimant entitled to a progress payment must serve the payment claim on the respondent being the legal entity with whom they contracted and who is liable to make the payment, in accordance with section 31. Unless the contract provides for a longer period, the claimant has 12 months to serve a ... ”

“ The due date for payment is determined in accordance with the terms of the contract. However the contract cannot stipulate a due date later than the due dates for payment set out under s 11(1A) and (1B). For example, if the contract states that payment is due 14 days after invoice then, upon ... ”

“ Where the respondent disputes the payment claim, they must prepare a payment schedule and serve it on the claimant: s 14. The respondent has 10 business days after the date of service of the payment claim, or a shorter period provided in the contract, to serve a payment schedule on the claimant. ... ”

“ Usually, a payment schedule is served by post or facsimile addressed to the claimant’s ordinary place of business during business hours. Evidence of service, such as a facsimile receipt or express post tracking number, must be retained as proof of service. The payment schedule must be served on ... ”

“ Where the respondent fails to provide a valid payment schedule, the Act precludes the adjudicator from considering issues not included in the payment schedule, and the respondent will also be barred from responding to the applicant’s adjudication application. It is the respondent’s only chance to ... ”

“ Where part payment is made, the claimed amount is to be reduced by the amount of the payment received. ”

“ Section 17(2) notice – Second chance for respondent to provide payment schedule This provides the respondent with a second opportunity to provide the claimant with a payment schedule, however within the shorter period of 5 business days. See the matter plan for an example section 17(2) notice. ”

“ Adjudication is a statutory function carried out by independent adjudicators, and is often preferred to court-based debt recovery. The maximum liability of an unsuccessful claimant is the amount of the adjudication fees and these are usually shared by the parties unless the adjudicator determines ... ”

“ The adjudication application must be made within 10 business days from either the date of receipt of the payment schedule or, when no payment schedule is received, the date of expiry of the section 17(2) second chance notice. However, a claimant who receives a payment schedule after serving the ... ”

“ Where the respondent had provided a valid payment schedule, they may lodge with the adjudicator a response to the claimant’s adjudication application within 5 business days from receiving a copy of the adjudication application or 2 business days after receiving notice of an adjudicator’s ... ”

“ The adjudicator has 10 business days from the date that the application is accepted to determine the amount to be paid. The adjudicator may seek further submissions from a party, and strict deadlines will be set. The adjudicator will also give the other party the opportunity to comment on the ... ”

“ If the respondent fails to pay the adjudicated amount, the claimant can ask for an adjudication certificate from the nominating authority and recover this amount as a debt due. See the matter plan for an example letter to adjudicator requesting adjudication certificate. The nominating authority ... ”

“ Once the adjudication certificate is registered as a judgment, the payment process under the Act is complete. If the respondent fails to pay the judgment debt in time, you will need to advise your client on the most appropriate methods of enforcement of the judgment debt including under the ... ”