If:
- The respondent has not provided the payment schedule within 10 business days of being served with a payment claim; and
- Failed to pay the claimed amount by the due date; and
- The claimant wishes to adjudicate the payment claim;
the respondent must be given a second opportunity to serve the payment schedule. The notification of the second opportunity is made under section 17(2) of the Act.
To provide the notice:
- The claimant must notify the respondent within 20 business days of the due date for payment that they will be proceeding to adjudication if the full amount claimed is not paid. This is called the notice of optional adjudication or section 17(2) notice.
- The intent of the notice is to give the respondent a written notice that they have a further 5 business days to provide a payment schedule. The notice must state that the respondent has 5 business days to respond with a payment schedule before the claimant is entitled to apply for adjudication and that if the payment schedule is not received, the respondent is prevented by the Act from lodging an adjudication response.
The notice served by the claimant on the respondent may take the following form:
In response to this company’s payment claim dated ….... for $…... your company failed to provide a payment schedule within the time allowed by the Building and Construction Industry Security of Payment Act 1999 NSW. As a consequence your company became liable to pay the whole amount of the claim on the due date. The whole amount has not been paid. Our company has elected to apply for adjudication of the payment claim. Your Company has 5 business days in which to serve a payment schedule or pay the payment claim in full. If, within that time, your company fails to pay the whole amount, this company will proceed to adjudication. If your company also fails to serve a payment schedule, your company will be barred from lodging an adjudication response [see s.20(2A) of the Act]."
Notice for optional adjudication
If Payment Schedule received
If the claimant receives the payment schedule but either:
- disagrees with the scheduled amount; or
- full payment of the scheduled amount is not made by the due date;
the claimant may proceed to adjudication.
As a payment schedule has now been received, the dispute resolution process of the Act reverts to that described in the "Payment Schedule Served" flowchart. Please click on the link to the Payment Schedule served flowchart immediately below.
Payment Schedule Served flowchart
If Payment Schedule still NOT received
If no payment schedule is received within the 5 business days of the notice, the claimant has 10 business days from the expiry of the notice to apply for adjudication.
In any case the claimant must submit the adjudication application within the time specified by the Act. Once the time is passed the claimant loses any right to adjudication with respect to the payment claim. Neither Adjudicate Today nor an adjudicator can extend these statutory stipulations. Effectively the payment claim has expired.
However any unpaid portion of the expired payment claim can be included in the payment claim for the next reference date, provided the new payment claim is valid.
Please move to the next step on the "Payment Schedule NOT served flowchart" being "Claimant serves Adjudication (s.17.2) Notice providing Respondent with second opportunity to provide Payment Schedule".
