Building & Construction Industry Security Of Payments Act
Powerful Legislation
For Construction Debt Recovery

Security Of Payments Act Payment Claims

New South Wales Payment Claims

* This version of the Security Of Payments Act NSW legislation is current and therefore applies to construction contracts entered into on or after 21 April 2014 only

(1) A person referred to in section 8 (1) who is or who claims to be entitled to a progress payment (the
“claimant” ) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment.
(2) A payment claim:
(a) must identify the construction work (or related goods and services) to which the progress payment relates, and
(b) must indicate the amount of the progress payment that the claimant claims to be due (the
“claimed amount” ), and
(c) if the construction contract is connected with an exempt residential construction contract, must state that it is made under this Act.

(3) The claimed amount may include any amount:
(a) that the respondent is liable to pay the claimant under section 27 (2A), or
(b) that is held under the construction contract by the respondent and that the claimant claims is due for release.

(4) A payment claim may be served only within:
(a) the period determined by or in accordance with the terms of the construction contract, or
(b) the period of 12 months after the construction work to which the claim relates was last carried out (or the related goods and services to which the claim relates were last supplied),
whichever is the later.
(5) A claimant cannot serve more than one payment claim in respect of each reference date under the construction contract.
(6) However, subsection (5) does not prevent the claimant from including in a payment claim an amount that has been the subject of a previous claim.
(7) A head contractor must not serve a payment claim on the principal unless the claim is accompanied by a supporting statement that indicates that it relates to that payment claim.
Maximum penalty: 200 penalty units.

(8) A head contractor must not serve a payment claim on the principal accompanied by a supporting statement knowing that the statement is false or misleading in a material particular in the particular circumstances.
Maximum penalty: 200 penalty units or 3 months imprisonment, or both.

(9) In this section:

“supporting statement” means a statement that is in the form prescribed by the regulations and (without limitation) that includes a declaration to the effect that all subcontractors, if any, have been paid all amounts that have become due and payable in relation to the construction work concerned.

Victoria Payment Claims

(1)     A person referred to in section 9(1) who is or who claims to be entitled to a progress payment (the  claimant ) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment.

(2)         A payment claim—

(a)     must be in the relevant prescribed form (if any); and

(b)     must contain the prescribed information (if any); and

(c)     must identify the construction work or related goods and services to which the progress payment relates; and

(d)     must indicate the amount of the progress payment that the claimant claims to be due (the claimed amount ); and

(e)     must state that it is made under this Act.

(3)     The claimed amount—

(a)     may include any amount that the respondent is liable to pay the claimant under section 29(4);

(b)     must not include any excluded amount.

Note

Section 10(3) provides that a progress payment must not include an excluded amount.

(4)     A payment claim in respect of a progress payment (other than a payment claim in respect of a progress payment that is a final, single or one-off payment) may be served only within—

(a)     the period determined by or in accordance with the terms of the construction contract in respect of the carrying out of the item of construction work or the supply of the item of related goods and services to which the claim relates; or

(b)     the period of 3 months after the reference date referred to in section 9(2) that relates to that progress payment—

whichever is the later.

(5)     A payment claim in respect of a progress payment that is a final, single or one-off payment may be served only within—
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(a)     the period determined by or in accordance with the terms of the construction contract; or

(b)     if no such period applies, within 3 months after the reference date referred to in section 9(2) that relates to that progress payment.

(6)     Subject to subsection (7), once a payment claim for a claimed amount in respect of a final, single or one-off payment has been served under this Act, no further payment claim can be served under this Act in respect of the construction contract to which the payment claim relates .

(7)     Nothing in subsection (6) prevents a payment claim for a claimed amount in respect of a final, single or one-off payment being served under this Act in respect of a construction contract if—

(a)     a claim for the payment of that amount has been made in respect of that payment under the contract; and

(b)     that amount was not paid by the due date under the contract for the payment to which the claim relates.

(8)     A claimant cannot serve more than one payment claim in respect of each reference date under the construction contract.

(9)         However, subsection (8) does not prevent the claimant from including in a payment claim an amount that has been the subject of a previous claim if the amount has not been paid.

Queensland Payment Claims

(1) A person mentioned in section 12 who is or who claims to be entitled to a progress payment (the claimant) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment (the respondent).

(2) A payment claim—

(a) must identify the construction work or related goods and services to which the progress payment relates; and

(b) must state the amount of the progress payment that the claimant claims to be payable (the claimed amount); and

(c) must state that it is made under this Act.

(3) The claimed amount may include any amount—

(a) that the respondent is liable to pay the claimant under section 33(3); or

(b) that is held under the construction contract by the respondent and that the claimant claims is due for release.

(4) A payment claim may be served only within the later of—

(a) the period worked out under the construction contract; or

(b) the period of 12 months after the construction work to which the claim relates was last carried out or the related goods and services to which the claim relates were last supplied.

(5) A claimant can not serve more than 1 payment claim in relation to each reference date under the construction contract.

(6) However, subsection (5) does not prevent the claimant from including in a payment claim an amount that has been the subject of a previous claim.