Respondent NSW - Security Of Payments Act
Building and Construction Industry Security of Payment Act (1999) (the Act)
What does the Act do?
The Security Of Payments Act creates a statutory entitlement for a Claimant to be paid for construction work that has been carried out or construction related goods and services that have been supplied to a Respondent.
By the provision of a Payment Claim and having it adjudicated under the Act.
What sorts of the things are covered by the Act?
The Security Of Payments Act covers ‘Construction Work’ which is basically all building and related trades that are carried out for anybody that is not a resident home owner.
The Act also covers ‘Construction related goods and services’, if they have been provided by a supplier (such as a wholesaler) or person who provides services (such as a designer) if supplying or working for anybody that is not a resident home owner.
Note : the Act does not cover mining work.
I have received a Payment Claim what do I do?
You should provide a Payment Schedule within 10 business days.
How do I know that it is a Payment Claim?
A Payment Claim must:
(a) Identify the construction work (or related goods and services) to which the progress payment relates
What is a Payment Schedule?
A Payment Schedule is a document that indicates what the Claimant is to be paid by the Respondent.
A Payment Schedule must:
(a) Identify the Payment Claim to which it relates,
A Payment Schedule requires all of these 3 items or it is not a Payment Schedule.
A Payment Schedule can be served by post, fax, email or hand-delivery.
Note: The Respondent’s position will be limited by the Payment Schedule. If you have any doubt advice should be sought when preparing the Payment Schedule.
I did not provide a Payment Schedule within 10 business days
If you did not provide a Payment Schedule the Claimant needs to wait until the due date for payment of its Payment Claim to pass and submit a notice under Section 17 (2) of the Security Of Payments Act.
Once you receive this notice you have 5 business days to provide a Payment Schedule.
If you have provided a Payment schedule and the Claimant still thinks that they are entitled to be paid they may make an Adjudication Application.
If they do you will be notified by the Adjudicator and given an opportunity to provide an Adjudication Response.
Note : The contents of the Adjudication Response are limited by the Payment Schedule.
In reality if you owe the Claimant money for construction work that has been carried out you should pay them.
However, if you legitimately feel that you are being inappropriately charged or over charged there are ways of maximizing your opportunities and minimizing risks.
The short answer is yes.
The longer answer is it all depends.
If this happens you need to contact somebody for assistance.