NSW: Claimant Prepares s17(2) Notice

If the respondent has not provided a payment schedule within 10 business days of being served with a payment claim, and failed to pay the claimed amount by the due date for payment, prior to applying for adjudication of the payment claim, claimant must serve a written notice on the respondent.

The written notice is to be served on the respondent within the period of 20 business days immediately following the due date for payment and must:

• notify the respondent of the claimant’s intention to apply for adjudication of the payment claim; and
• provide an opportunity for the respondent to serve a payment schedule on the claimant within 5 business days after receiving the notice.

The notice served by the claimant on the respondent may take the following form:

In response to this company’s Payment Claim made on this date ____________________ 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) (‘the Act’).

As a consequence, your company became liable to pay the whole amount of the Payment Claim on the due date for payment. Your company has failed to pay the whole of the claimed amount by the due date for payment.

Our company has elected to apply for adjudication of the Payment Claim. Your company has five (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 of the Payment Claim, this company will proceed to adjudication. If your company again fails to serve a Payment Schedule, your company will be barred from lodging an adjudication response [see section 20(2A) of the Act].

Click here to download example of s17(2) Notice

Service of s17(2) Notice

Claimants should type the notice on letterhead, complete the date and $ fields and sign the notification. It is essential that the claimant keeps a record of the time, date and manner of service on the respondent, as adjudication times run from the date of receipt by the respondent of the section 17(2) notice. Failure to be able to prove the date of receipt may compromise the claimant's adjudication application.

Unless otherwise agreed by the parties, service should occur on the respondent during normal business hours at the respondent's ordinary place of business or in accordance with the NSW Electronic Transactions Act 2000 Section 8. Your lockbox may be used to electronically serve documents in accordance with the NSW Electronic Transactions Act 2000.

In our experience, below is the safest ranking to ensure service:

1. Use your lockbox to send the s17(2) to the respondent if there is an agreement between the parties for service via lockbox or link
2. Courier - signature required
3. Mail - Express Post: keep express post tracking number for delivery verification
4. Platinum Post - Signature required
5. Ordinary Post - Make a statement verifying the address, date of postage and other relevant details
6. Email (only to an email address which is specified by the person for the services of documents of that kind - generally the respondent). In email options, we advise tick both "request a delivery receipt" and "request a read receipt". All documents must be downloaded and attached to the email as an attachment, unless there is an agreement to service by a link.
7. In person - Ensure a receipt is obtained or
8. A different method only where such method is provided under the relevant construction contract. Please note that service by fax is only valid if provided by the contract. If service by fax is permitted, print and keep full page fax journal report as evidence of transmittal.

Tips:

• When items are sent by ordinary post, allow sufficient time for them to be received. Generally, items sent by ordinary post are taken to have been effected on the seventh working day after the letter was posted. We recommend against post as respondents have denied receipt.
• Should fax be permitted by contract as a form of service, ensure you retain the full page fax receipt and refrain from sending colour photographs, and plans as they are generally rendered unreadable. Lengthy faxes have been known to lose pages in transmission.

When should I receive payment - Calculating the due date for payment?

A claimant is entitled to be paid a valid progress payment claim by the due date for payment.

The due date for payment is the date on which a payment claim becomes due and payable in accordance with the terms of the contract. However, the Act sets a maximum time period for the due date of payment which overrides any contractual provision which is longer.

Calculating the due date for payment correctly is important because certain rights and privileges are calculated from that date.

Our due date for payment flowchart and related information is available here and will assist in calculating the due date for payment.

The due date for payment flowchart may also be downloaded here.

Please move to the next step on the flowchart being "Respondent has 5 business days from receipt of Adjudication Notice [s.17(2) notice] to prepare & serve Payment Schedule".