Vic Claimant Prepares Performance Security Claim

PLEASE NOTE: The information below is in relation to performance security claims. If you are preparing a payment claim in respect of a progress payment, please click here.

A person who, under a construction contract, has undertaken to carry out construction work or to supply related goods and services is entitled to the release of performance securities.

Claimant Prepares Performance Security Claim

A performance security claim is a claim for the release of the whole or part of a performance security pursuant to the Building and Construction Industry Security of Payment Act 2002 (Vic). The performance security claim may be served alone or in conjunction with a payment claim.

The easiest way to prepare and submit a performance security claim is by using Lockbox. Alternatively download a PDF template.

A valid performance security claim must comply with the below requirements

1. be served by or on behalf of a claimant (in accordance with strict legal requirements as to service); and
2. identify the construction work or related goods and services to which the performance security and the claim relates; and
3. specify the type and amount of performance security claimed; and
4. contain the words: “This is a performance security claim made under the Building and Construction Industry Security of Payment Act 2002 (Vic)”; and
5. be addressed to the correct legal entity (not the trading name) or individual that the claimant contracted with (the respondent), including correct ABN/ACN details.

Earliest date a Performance Security Claim may be served (see s 17A of the Act):

A performance security claim may be served no earlier than the earliest of:

• a day that is at least 20 business days after the end of the relevant defects liability period under the construction contract;
• on or after a day, or on or after the day of the occurrence of an event (if any), specified in the construction contract.

IMPORTANT: If the claimant serves a performance security claim before the earliest day a performance security claim may be served:

• the performance security claim is not invalid;
• the performance security claim is taken to be served on the earliest day; and
• the time within which the person may serve a performance security schedule on the claimant does not arise until the earliest day.

Latest date a Performance Security Claim may be served (see s 17C of the Act):

A performance security claim may be served no later than the latest of:

• the day (if any) determined under the construction contract as the latest day on which the performance security claim may be served; or
• the last day of the named month following the named month in which the last defects liability period set out in the construction contract (if any) ends.

What can I claim in a performance security claim?

A performance security claim may include a claim for the release of the whole or part of a performance security (a performance bond or retention money) under a construction contract.

Next steps

A performance security schedule is the respondent’s reply to the performance security claim.

Different procedures and timeframes apply depending on when the performance security schedule is served:

1. if the respondent serves a valid performance security schedule within 10 business days, visit Respondent Serves Schedule.
2. if the respondent does not serve a valid payment schedule within 10 business days, visit Respondent DOES NOT Serve Schedule.

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