NSW: Respondent Serves Payment Schedule after receipt of s17(2) Notice

Not Served

If the respondent provides the payment schedule following receipt of the second opportunity [s17(2)] notice within 5 business days of receipt of the notification and the claimant accepts and is paid the full scheduled amount or some lessor agreed amount, the payment process under the Act is complete.

Otherwise, if the claimant:

  • disagrees with the scheduled amount; or

  • full payment of the scheduled amount is not made by the due date;

then the claimant may proceed to adjudication.

The adjudication application must be made within 10 business days from the date of expiry of the s.17(2) notice*.

*Note: herein lies two traps for many a claimant and their advisers.

  1. If the respondent fails to pay the full scheduled amount by the due date of payment, some adjudication claimants have assumed (wrongly) that they have 20 business days from the due date of payment to make the claim as this is the timing when the respondent serves an adjudication application at the first opportunity and fails to pay it. However this is not what the Act provides. Fortunately, on most occasions, 10 business days from the date of expiry of the s.17(2) notice falls after 20 business days from the due date of payment. Correct counting of business days is crucial.

  2. The time to make the application is within 10 business days from the expiry of the s.17(2) notice. This means that an adjudication application made before the expiry of the s.17(2) notice but after the second opportunity payment schedule is received is invalid and will need to be resubmitted after the notice expires at the end of the 5 business days.

As a payment schedule has now been received, the dispute resolution process of the Act reverts to that described in the Payment Schedule Served area of the flowchart (with blue background). Please move to the next step on the NSW flowchart being "Claimant has 10 business days to prepare & serve the Adjudication Application on Adjudicate Today from date for receipt of the Payment Schedule. However if an Adjudication Notice [s17(2)] was served, the time is 10 business days after expiry of the 5 business days given by that Notice.

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