WA: Claimant Prepares s28(2) Notice

If:

• The respondent has not provided the payment schedule within 15 business days of being served with a payment claim; and
• Failed to pay the claimed amount by the due date for payment; and
• The claimant wishes to adjudicate the payment claim;

the respondent must be given a second opportunity to serve a payment schedule. The notification of the second opportunity is made under section 28(2) of the Act.

To provide the notice:

• The claimant must notify the respondent within 20 business days of the due date for payment that it will be proceeding to adjudication if the full amount claimed is not paid. This is called the 2nd opportunity or section 28(2) notice.
• The intent of the notice is to give the respondent a written notice that it has a further 5 business days to provide a payment schedule and that if the payment schedule is not provided, the respondent is prevented by the Act from lodging an adjudication response in any subsequent adjudication proceedings.

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

Notice under section 28(2) of the Building and Construction Industry (Security of Payment) Act 2021 (WA)

We have provided you/your company with a payment claim dated ________________ for $________

We have not been provided with your payment schedule within the time allowed under the Building and Construction Industry (Security of Payment) Act 2021 (the Act).

Under the Act, you/your company became liable to pay the whole amount of the payment claim on the due date for payment. You your/company failed to pay the whole of the claimed amount by the due date for payment.

As a consequence, we have elected to apply for adjudication of the payment claim under the Act.

You/your company has five (5) business days to give a payment schedule or pay the payment claim in full.

If you/your company fails to pay the whole amount of the payment claim within this time, we intend to apply for adjudication under the Act.

If you/your company does not give a payment schedule within this time, you/your company will not be entitled to give an adjudication response (per section 34(1) of the Act).

NOTE: A business day is defined in the Act as any day other than a Saturday, Sunday, public holiday, or day that falls between 22 December in any year and 10 January in the following year (inclusive).

Western Australia Building and Energy template for a section 28(2) notice is available here.

Use your lockbox

To use our wizard to produce and serve a second opportunity [(section 28(2)] notice click here

Note: to access our wizard, you must login to your lockbox.

Service of s28(2) Notice

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 28(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 WA Electronic Transactions Act 2011 section 14. Your lockbox may be used by owners for this purpose. In our experience, below is the safest ranking to ensure service:

1. Use your lockbox to send the S28(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 deemed to be received on the fourth working day after posting. 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.

Please move to the next step on the flowchart being "Respondent has 5 business days from receipt of Adjudication Notice [s.28(2) notice] to prepare & serve Payment Schedule".