ACT: Respondent Serves Payment Schedule
The payment schedule is not served until it is delivered in person to the claimant or lodged during normal business hours at the claimant's ordinary place of business or posted or faxed to the claimants ordinary place of business (or as otherwise provided by the contract), so that it reaches the claimant no later than 10 business days after receipt of the payment claim. The contract, or common practice, may provide for other methods of service, such as email.
Unfortunately many respondents have made the mistake of leaving their response until after the tenth business day in the belief that they have complied with the Act. They have not. Service on business day 11 renders the payment schedule invalid and, should the claimant give notice of intention to apply for adjudication, the payment schedule will need to be served again.
We recommend that a record of the time, date and manner of service on the claimant be kept. A claimant may deny receipt of the payment schedule or claim receipt after the expiry of 10 business days (or such shorter period provided by contract). In this case, the respondent must be able to evidence the date of service.
In the absence of any contract provision, we suggest that service of the payment schedule be performed in one of the following ways with the preferred option being personal delivery by courier service which requires a signature.
- Courier - signature required
- Fax - Print and keep full page fax journal report as evidence of transmittal
- Mail - Express Post: keep express post tracking number for delivery verification
- Platinum Post: signature required
- Ordinary Post: make a statement verifying the address, date of postage and other relevant details
- Email (only to an email address which has a history of usage between the parties and/or as an agreed method of service of notices) - In email options, tick both "request a delivery receipt" and "request a read receipt"
- A method prescribed under the relevant construction contract.
What happens if the respondent provides a payment schedule for less than the amount claimed?
The claimant can:
Accept the reasons given by the respondent for not paying the full payment claim and wait for the respondent to pay any scheduled amount by the due date. or
Apply in writing to Adjudicate Today for adjudication of the disputed amount. The adjudication application must be made within 10 business days after receiving the payment schedule. or
Sue in court or commence any dispute resolution process permitted by the construction contract.
What happens if the respondent provides a payment schedule but fails to pay the amount due by the due date?
The claimant can:
Apply in writing to Adjudicate Today for adjudication of the full claimed amount regardless of whether the claimant was prepared to accept a lesser scheduled amount. The adjudication application must be made within 20 business days after the due date of payment. or
Sue in court or commence any dispute resolution process permitted by the construction contract. and
Give 2 business days notice of intention to suspend work.
Calculating business days correctly is most important. The day the payment schedule is received by the claimant is counted as day 0. A business day is Monday to Friday inclusive excluding weekends, public holidays and the days between Christmas and New Year. Therefore if the payment schedule is served on a Saturday, the following Monday (assuming it is not a public holiday) is counted as day 0.