ACT: Payment Schedule NOT Served - Claimant NOT Paid

Not Served

If a respondent fails to provide a payment schedule within 10 business days, or earlier time if provided by the construction contract, and does not pay the full or any part of the claimed amount by the due date for payment, a statutory debt is created which the claimant is entitled to recover upon demonstrating the work was performed under a valid construction contract between the parties.

The claimant may now decide from the following possibilities.

  1. Seek to recover payment by giving notice of adjudication; or
  2. Make application to the court; and/or
  3. Suspend work on giving 2 business days' notice.

Seek to recover payment by giving notice of adjudication

Almost all claimants choose to go to adjudication as this avenue avoids the risk of lengthy and expensive litigation. Often claimants also give 2 business day's notice of suspension of work.

Adjudication is a quick and informal process introduced by government to "keep the money flowing in the building and construction industry". It represents an alternative to the slow, expensive and difficult process of going to court.

The right to make an adjudication application or to suspend work only arises after the due date for payment has passed. A common reason for an adjudication application not being properly made is that the claimant gives notice of adjudication either too early or too late because they have wrongly calculated the due date for payment. The due date for payment is the date on which a payment claim becomes due and payable, being the earlier of 15 business days** after a payment claim is made, or the day when the payment becomes payable under the contract. Proper calculation of this date is imperative as a number of milestones under the Act are calculated from this date.

Suspend work on giving 2 business days' notice

Regardless of whether the claimant chooses adjudication or litigation, there is a statutory right to suspend work on giving 2 business days' notice to the respondent.

Tell me more about my right to suspend work

Please move to the next step on the ACT flowchart "Claimant chooses Adjudication as faster and cheaper alternative to court action".

**We note that the ACT Government has advised that the “the changes to the Building and Construction Industry (Security of Payment) Act 2009, which commenced on 11 March 2024 (and relevantly change the timeframe from 10 business days to 15 business days), apply to any progress claim made under the Act from 11 March 2024, regardless [of] when the contract was signed.” This issue will remain unsettled until it is considered by the Courts.

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