ACT: Respondent Serves Payment Schedule within Time

A payment schedule need only be prepared if the respondent does not propose to pay the full amount claimed by 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.

The payment schedule is not served until it is received by the claimant or lodged during normal business hours at the claimant's ordinary place of business, so that it reaches the claimant no later than 10 business days after receipt of the payment claim.

Unfortunately many respondents make 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 means the payment schedule is 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.

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 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 contract; and/or
• Give 2 business days' notice of intention to suspend work.

Tell me about the claimant's rights to suspend work.

Please move to the next step on the ACT flowchart by selecting either "Claimant accepts Payment Schedule" or "Claimant disputes Payment Schedule" depending on the circumstances.

**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.