The Security of Payment Adjudication Process (Step 1 – The Payment Claim)

If you are in the building and construction industry in Australia and you believe you are entitled to receive payment from a client or another contractor/supplier and you are getting no joy in receiving that payment then you may be able to use the security of payment adjudication process under the various state and territory legislations (the relevant Act).

This article is based on the NSW Building and Construction Industry Security of Payment Act (1999), QLD Building and Construction Industry Payments Act (2004) and the ACT Building and Construction Industry (Security of Payment) Act (2010).

When you claim for monies you are the “Claimant” and the other party is the “Respondent”.

Timeframes under the relevant Act are very strict and you must be careful to abide by them accurately otherwise the whole process could be deemed to be invalid and time will be wasted.

There are a number of possible paths to adjudication all of which starts off with the service of a “Payment Claim” from a Claimant to a Respondent.

The Payment Claim is the first and foremost document on which the entire adjudication process is based upon. Previous invoices and payment claims do not govern the timing of the adjudication process. You can only claim at the time allowed in your contract (see Reference Date below) and if that is not agreed or stated then the relevant Act allows you to claim once per month from the end of each month and up to 12 months after the works and/or supplies were provided.

The time starts ticking when the Respondent receives the Payment Claim.

A Payment Claim is based on works, goods and services provided under one contract/arrangement. The contract/arrangement may be verbal and/or in writing and may be for one project site or many project sites depending on how you were engaged.

Even if the contract/arrangement is verbal in nature it is suggested that you will still need to have evidence of the contract/arrangement in the form of written documentation between the parties (emails, faxes etc).

What the Payment Claim should show? – A Payment Claim can be a normal invoice but it should:

* identify and describe the construction work or related goods and services to which the progress Payment Claim relates; and

* state the amount of the progress payment 第三方支付 that the claimant claims to be payable (the claimed amount); and

* state that it is made under the relevant Act. For example in QLD words are added onto the invoice such as “This is a Payment Claim under the Building and Construction Industry Payments Act 2004 QLD.”

What can be claimed? – The Claimant may wish to claim for numerous past unpaid invoices in relation to the contract together under the one Payment Claim. You can do this by attaching all the invoices on the back of a Payment Claim cover sheet which covers all the criteria above and making sure that it is plain as to what sum you are actually claiming (for example that would be the total of the past claims, less any amount paid where they have been part paid). You can claim for any money that is due and payable under the contract including where applicable retentions, approved variations and interest.

Giving the Payment Claim to the Respondent – The Claimant should serve the Payment Claim on the Respondent and keep evidence of how they served the Payment Claim. An example might be facsimile receipt, registered post receipt etc.

Reference Date (when the Payment Claim can be made) – The Payment Claim can only be served when the contract states you have a right to make a claim for payment, if the contract does not state this or it is a verbal contract and no date for issuing payme

 

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