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NSW Claimant: Preparing & Serving the Payment Claim

Authorised Nominating Authority

A person who, under a construction contract, has undertaken to carry out construction work or to supply related goods and services is entitled to receive a progress payment for work performed.

The claimant (the person claiming a progress payment) may serve a payment claim on and from the last day of the named month in which the construction work was first carried out (or related goods and services were first supplied) under the contract and on and from the last day of each subsequent named month.

However, if the construction contract makes provision for an earlier date in a named month (e.g. 25th of the month), than that will be the applicable date rather than the last day of the month.

If a construction contract has been terminated, a payment claim can be served on and from the date of termination.

Your Lockbox

Adjudicate Today knows that making payment claims which comply with the requirements of the Act can be challenging. You need to indicate the amount owed, describe the items and quantities of the work or service provided and, if applicable, attach necessary documents e.g. completion certificates, dockets confirming the receipt of goods. There are rules about when payment claims can be made. If you make a claim about residential work, there are more rules. While we encourage you to read below, our online wizard is available to walk you through each step in making and serving a valid payment claim.

Our wizards are smart but to use them you need to establish a free and no obligation 'Lockbox'. The Lockbox is yours and can't be accessed by Adjudicate Today staff or anyone else without your express permission. Adjudicate Today does not charge for creating your Lockbox or using our wizards. Your Lockbox allows you to save and print the payment claim. If generating your Payment Claim via your Lockbox Wizard, a PDF document will be generated which contains a link to the files in your Lockbox for this particular Payment Claim. If service of the Payment Claim is agreed to between the parties by Lockbox or electronic link, then you may download and send this PDF document to the other party. If service of the Payment Claim is agreed to between the parties by email, then you must download all files in the link in this PDF and send those files as an attachment to the email. You must otherwise download all files, print them and provide them to the Respondent, preferably by courier. The Lockbox can remind you when payments are overdue. To use your Lockbox and access Adjudicate Today wizards click here, otherwise continue to read below for manual assistance in making a payment claim and/or clarification of any uncertainties in completing our online payment claim wizard. In all cases, the Claimant MUST make its own enquiries to satisfy itself of the most suitable method of service.

It is important to provide the information requested by our payment wizard. Courts have held that works must be sufficiently identified in the payment claim and 'it is not up to the recipient to sort through previous payment claims to ascertain work to which a new payment claim related'.

What is a payment claim?

A payment claim is a progress claim (invoice) which allows recovery of money owed using the Act.

It must:

  • be served by or on behalf of a claimant; and
  • contain the words: “This is a payment claim made under the NSW Building and Construction Industry Security of Payment Act 1999” or words to that effect; and
  • identify the respondent and the construction work performed or related goods and services; and
  • indicate the amount. A claim for $10,000 + GST should be described as $11,000 including GST; and
  • describe the items and quantities of work done or related goods and services provided; and
  • relate to work performed on or prior to the last day of the named month (or earlier day if provided by contract). If the payment claim is served early, it can't be used to support an application for adjudication.
  • Additionally head contractors:

A progress claim may include:

  • The final payment for construction work carried out or the supply of the goods/services under the construction contract; or
  • A single or one-off payment for carrying out construction work or the supply of goods/services under the construction contract; or
  • A payment based on an event or date (“milestone payment”).

This does not prevent the claimant making one payment claim for a progress payment in any particular month for construction work carried out or for related goods and services supplied in that month.

Qualifications:

  1. Only one progress claim can be made for each month. Multiple progress claims can't be made in relation to the same month. However a progress claim which was previously submitted and not paid in whole or part, can be incorporated as part of a new progress claim in respect of a later month.
  2. Unless the construction contract provides for a longer period, a progress claim must be made within 12 months after the construction work to which the claim relates was last carried out or the related goods and services to which the claim relates was last supplied. Construction contracts may provide for longer periods e.g. a contract which provides for a 12 months defects liability period and that the final claim for payment should be made within 28 days after the end of the defects liability period. Here, the contract has extended the period for making the final payment claim from 12 months to 12 months plus 28 days. A contract can't reduce the 12 month period allowed by the Act.
  3. Unless additional work has been undertaken, progress claims (or parts of progress claims), which are the subject of an earlier adjudication determination can't be resubmitted in a subsequent progress claim. That is, exactly the same work can’t be submitted to a second adjudication if the claimant is not satisfied with the result of the first adjudication. Where there is an overlap of work (some previously adjudicated and some new), the second adjudicator must give the previously adjudicated work the same value as the first adjudicator.

Identify the Respondent

Ensure the payment claim is addressed to the legal entity that the claimant contracted with (the respondent). It is no use seeking an adjudication determination against a respondent if the name and/or ACN/ABN is incorrect. Courts won't enforce determinations unless the name and ACN/ABN of the respondent match. Here are three examples (with names changed) of problems encountered.

  1. A contract is entered into with "Respondent (NSW) Pty Ltd" but payments are received from "Respondent Pty Ltd" An adjudication application failed when the claimant applied for a determination against "Respondent Pty Ltd" which was not the company and ACN/ABN as identified in contract.
  2. A claimant was engaged under contract by a consortium but all dealings and payments were with one individual company member of the consortium. As the contract was with the consortium, an application against the individual member of the group couldn't succeed.
  3. A claimant contracted with Fred Smith (legal entity) trading as ABC Building (trading name) but the payment claim was issued to ABC Building. An adjudication determination can't be enforced against a trading name. The payment claim should have been issued to Fred Smith.

Am I entitled to make a payment claim under the Act?

Those who can make a payment claim under the Act include:

  • contractors against clients (e.g. principals, developers, owner-builders, government)
  • subcontractors against contractors
  • suppliers of building components against purchasers
  • architects, engineers, and others (e.g. consultants) providing advice against clients
  • plant and equipment hirers against clients.

Construction work and services can be claimed under the Act even if the contract is not written and/or does not provide for progress payments. e.g. a contract provision providing for a single payment to be made when work is completed is unenforceable. Claimants are entitled to be paid every month.

Unless the construction contract provides for a longer period, the claimant has 12 months to serve a payment claim on the respondent from the time construction work was last carried out or the related goods and services were last supplied.

What work is covered?

Construction work and the supply of related goods and services includes:

  • building work
  • civil engineering
  • demolition
  • electrical
  • hire of plant or equipment
  • landscaping
  • maintenance
  • professional services such as architectural design, surveying and soil testing
  • supply of building materials.

What can I claim for?

A claimant can make a payment claim on the respondent for:

  • construction work done
  • construction materials or plant provided
  • consulting services provided
  • interest on overdue progress payments
  • losses and additional expenses due to work being deleted from contract while work is suspended under the protection of the Act
  • cash security & retention monies.

What information should be included with a payment claim?

A payment claim should include all information necessary for a respondent to both identify the work and how the sum claimed is calculated. During adjudication, some respondents have successfully argued that they could not approve payment because the work claimed was so vague as to make it impossible to be confidently valued.

Where available, payment claims should include attachments such as:

  • statements detailing the extent of the work completed
  • completion certificates
  • delivery dockets
  • dated photographs
  • other contract documentation as may be required by contract.

Download template of a Payment Claim

How is a Payment Claim served?

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.

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

  1. Use your lockbox to send the payment claim 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:

  • Claimants are strongly advised to keep a record of the time, date and manner of service on the respondent. The time for the respondent to provide the payment schedule (response) runs from the date of receipt of the payment claim. A respondent may deny receipt of the payment claim in which case the claimant must be able to evidence the date of service.
  • 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.

Can the Act be used to secure payment from Homeowners?

Yes, a home builder can make a payment claim to a homeowner in respect to owner occupier construction contracts made on or after 1 March 2021.

Prior to 1 March 2021 the Act did not apply to contracts with homeowners (that is, “owner-occupiers” who reside in or intend to reside in the premises that are the subject of the construction contract). This meant that residential builders could not make claims under the Act, even though subcontractors who carried out work on the same project could make such claims against the builder. This put builders in a difficult financial position if the homeowner had not paid the builder, but the builder was obliged to pay subcontractors.

The key changes from 1 March 2021 are:

  • Residential builders can submit progress claims to homeowners monthly, even if the contract only allows claims to be submitted on completion of certain milestones
  • If the contract doesn’t specify a due date for payment of progress claims, payment is due 10 business days after the claim. Penalties apply for homeowners’ failure to pay on time, including suspension of work;
  • Unpaid progress claims attract interest, even if the contract doesn’t allow interest
  • Homeowners need to provide a payment schedule within 10 business days of receiving a claim (or an earlier time specified in the contract)
  • If homeowners do not provide a valid payment schedule in time, they will become liable to pay the whole amount of the claim
  • Disputes about progress payments can be referred by the builder to adjudication.

Articles going to different aspects on the introduction of residential adjudication can be found:

A homeowner cannot make a payment claim to a home builder. Such disputes relating to the quality of building work remain controlled by existing consumer protection measures. For more information assisting home owners to resolve their dispute with a builder, refer to the Fair Trading website (click here).

Regardless of the date the contract was made:

  • If a contract is for work other than on the respondent's immediate residence, then that work is subject to the Act. e.g. work involving a residential investment property
  • If the homeowner did not contract directly with the claimant, then that work is subject to the Act. Examples of work on residential properties that are subject to the Act include contractor contracts with landlords, strata title bodies corporate, developers, builders, subcontractors and sub-subcontractors, consultants and suppliers.

What else is excluded by the Act?

  • A construction contract that deals with construction work or related goods and services physically carried on outside NSW. In this situation, an adjudication application should be made under the Security of Payment Act relevant to the State in which the work was performed.
  • A construction contract that regulates an employer/employee relationship
  • A construction contract that forms part of a loan agreement, a contract of guarantee or a contract of insurance under which a recognised financial institution undertakes to lend or repay an amount lent; guarantee payment of an amount owing or repayment of an amount lent; or provide an indemnity relating to construction work carried out or related goods and services supplied
  • Contracts where the amount payable is calculated other than by reference to the value of the work performed
  • A corporation in liquidation cannot serve a payment claim or take action to enforce a payment claim (including by making an application for adjudication of the claim) or an adjudication determination. If the corporation in liquidation has made an adjudication application that is not finally determined immediately before the day on which it commenced to be in liquidation, the application is taken to have been withdrawn from that day.

Avoid pitfalls

Click here for a list of common reasons why adjudication applications by claimants fail.

How long do I have to wait for a payment schedule in response?

The next step in our flowchart provides crucial information for both claimants and respondents. Depending on whether a respondent does or does not provide a payment schedule to the claimant within 10 business days' results in different time frames and procedures.

The respondent who fails to provide a payment schedule within 10 business days must be given a second opportunity to provide one. If it fails a second time, the Act effectively punishes the respondent by denying it the right to participate in the adjudication process.

Please move to the next step on the flowchart being "Respondent has 10 business days after receipt of the Payment Claim (or shorter period if provided by construction contract) to prepare and serve a Payment Schedule"

What other rights exist?

A claimant may take a lien or charge over unfixed plant or materials supplied by the claimant for or in connection with the carrying out of the construction work.

A lien is the right to seize and sell goods in order to obtain payment. If the goods are sold for more than the amount owed under the Act then the balance must be paid to the respondent. The lien granted by the Act does not give the claimant preference over a lien or charge existing before the date upon which the progress payment became due. It does not give the claimant any rights where a third party owns the items.

Before exercising a lien, legal advice should be obtained to ensure that there is no trespass upon the rights of others, which may cause the claimant to incur legal liability.