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

Security Of Payments Act NSW – Applying for Adjudication

This section is for contractors, suppliers, and consultants who are owed money for construction work and or related goods & services provided for a construction project situated in NSW and are now entitled to apply for adjudication.

Building & Construction Industry Security Of Payments Act 1999

Including October 2013 Amendments.

Applying For Adjudication Under the Security Of Payments Act NSW

If you have not received full payment and or you have received a Payment Schedule which is valid under the Security Of Payments Act NSW that is not complied with, or you do not agree with, you may apply for adjudication: Online Adjudication Application Form

Payment Claim Served:

The Respondent must provide a payment schedule with 10 business days of receiving the payment claim. Pursuant to the Security Of Payments Act NSW a payment schedule:

(a) must identify the payment claim to which it relates, and

(b) must indicate the amount of the payment (if any) that the respondent proposes to make (the scheduled amount).

Payment Schedule Received:

If the Respondent provides a payment schedule within the time allowed under the Security Of Payments Act NSW and proposes to pay the payment claim in full, then full payment must be made by the due date. If the Respondent provides a payment schedule within the allowed time and proposes to pay an amount less than the claimed amount you may proceed straight to adjudication.

Payment Schedule Not Received:

If the Respondent fails to provide a payment schedule within the time allowed under the Security Of Payments Act NSW the amount claimed becomes a statutory debt owed by the Respondent. A 2nd Notice of the payment claim may be served after the due date for payment.

Due Date For Payment:

(1) A progress payment under a construction contract becomes due and payable:

(a) on the date on which the payment becomes due and payable in accordance with the terms of the contract, or

(b) if the contract makes no express provision with respect to the matter, on the date occurring 10 business days after a payment claim is received by the respondent.

2nd Notice Under The Act:

If no payment schedule is received in response to the payment claim you must issue a 2nd notice under the Security Of Payments Act NSW which allows the Respondent a further 5 business days to pay or provide a payment schedule before an application for adjudication can be lodged. The 2nd notice must be set out correctly in respect of the contracted entities, it must refer to the unpaid payment claim and notify the Respondent that you intend to apply for adjudication.

Preparing The Application For Adjudication:

The Adjudication Application form can be found here. Just open this link and request the form. The most important part of the application is the Written Submission, supporting evidence and statutory declarations.

Lodging The Application For Adjudication:

The Application must be lodged with an Authorised Nominating Authority within the time allowed.

Serving The Application For Adjudication On The Respondent:

An exact copy of the Adjudication Application must be served on the Respondent at the time of lodgement.

Any notice that by or under the Security Of Payments Act NSW is authorised or required to be served on a person may be served on the person:

(a) by delivering it to the person personally, or

(b) by lodging it during normal office hours at the person’s ordinary place of business, or

(c) by sending it by post or facsimile addressed to the person’s ordinary place of business, or

(d) in such other manner as may be prescribed by the regulations for the purposes of this section, or

(e) in such other manner as may be provided under the construction contract concerned.

(2) Service of a notice that is sent to a person’s ordinary place of business, as referred to in subsection (1) (c), is taken to have been effected when the notice is received at that place.

(3) The provisions of this section are in addition to, and do not limit or exclude, the provisions of any other law with respect to the service of notices.