NSW: Payment Schedule NOT Served - Claimant Suspends Work

There are 3 circumstances in which a claimant may exercise a statutory entitlement to suspend work.

  1. The claimant has received a valid payment schedule but the respondent fails to pay the scheduled amount by the due date for payment; or
  2. A payment schedule was not served within time and the respondent fails to pay the whole or any part of the claimed amount by the due date for payment; or
  3. The adjudicated amount is not paid by the relevant date (often 5 business days) after an adjudication determination is received by the respondent.

Notwithstanding anything in the contract, the claimant is not liable for any loss or expense suffered by the respondent as a consequence of a suspension of work under the Act. If, in response to a suspension, the respondent removes any work from the claimant's contract, the respondent is liable to pay for any consequent loss and expense suffered by the claimant.

The respondent must be provided with 2 business days written notice of the claimant's intention to suspend work. For example, if the due date for payment is Monday and the written notice is provided on Tuesday, work may be suspended from Friday of the same week.

The notice may take the form:

"You (insert name of respondent) have failed to pay the amount due under the Building and Construction Industry Security of Payment Act 1999 NSW in respect of the payment claim served on you on [insert date]. Take notice that pursuant to the right under section 27 of the Act, work will be suspended at the expiration of two business days unless, in the meantime, the amount due is paid in full."

Once the claimant has been paid the amount due, work must resume within 3 business days.

Payment for any loss and expense can be pursued through adjudication like any other due payments.

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