Who does this Act apply to?

The Act applies to written and oral construction contracts carried out in NSW. The Act applies to all construction work including the provision of goods and services related to the construction contract.

The Act does not apply to;

• Construction contracts forming part of a loan agreement
• Construction contract for residential building work as defined by the Home Building Act 1989
• Construction contracts where the consideration payable is calculated otherwise by reference to the value of the work carried out.
• Employees as defined by the Industrial Relations Act 1996

Am I able to withhold money until I am paid under another contract?

The respondent is not able to withhold money due to the claimant until they are paid under another contract. This is deemed a "pay when paid" provision and has no effect in relation to any claim for construction work made under the Building and Construction Industry Security of Payments Act.

What must a valid payment claim include?

A "payment claim" is terminology used in the Act to describe what would normally be called a tax invoice, progress claim, final claim etc.

The payment claim must identify the construction work or related goods and service to which the progress payment relates. It must state the amount of the progress payment that the claimant is claiming and must state "This payment claim is made under the Building and Construction Industry Security of Payments Act".

Payment Schedule What should I include in my payment schedule?

When the respondent receives the payment claim from the claimant they should serve a payment schedule on the claimant within 10 business days of receiving the payment claim. The payment schedule must identify the payment claim to which it relates and must state the amount of the payment, if any, that the respondent proposes to make.

If the scheduled amount is less than the claimed amount, the respondent must state reasons why the scheduled amount is less than the claimed amount.

What should I do, if I do not agree with the payment claim?

If you do not agree with the payment claim then you must provide a payment schedule within 10 business days of receiving the payment claim. The payment schedule must identify the payment claim to which it relates and must indicate the amount of the payment that the respondent proposes to make. If the scheduled amount is less than the claimed amount, you must identify the reasons why the scheduled amount is less. It is important to include all of the reasons as they cannot be introduced later in the adjudication response.

What happens if I do not serve a payment schedule?

If you do not provide a payment schedule then you will loose the opportunity to provide an adjudication response. It is important that if you have valid reasons for withholding payment that you provide a payment schedule as this is your opportunity to have your say in the process.

What should I do, if I am served with an Adjudication Application?

If you are served with an Adjudication Application you will be required to prepare an Adjudication Response. It is suggested that you contact the ANA or seek independent advice should you be served with an Adjudication Application. Please remember an adjudication response must be served within 5 business days after receiving a copy of the application OR 2 business days after receiving notice of an adjudicator's acceptance of the application, whichever time expires later.

How long will it take for the Adjudicator to make a decision?

The Adjudicator must make a determination within 10 business days after the date on which the Adjudicator notified the parties as to his or her acceptance of the application or within such further time as the claimant and respondent may agree. It is the policy at ASC that the Adjudicator will accept the application within 4 business days of ASC receiving the application.

If I am found liable, how long do I have to pay the Adjudicated Amount?

The respondent is required to pay the adjudicated amount 5 business days after the date on which the adjudicator's decision is served on the respondent or at a later date, which the adjudicator decides.

Who pays the Adjudication fees and expenses?

The claimant and respondent are jointly and severally liable to contribute to the payment of the adjudicator's fees and expenses in equal proportions or in such proportions as the adjudicator may determine. The Adjudicator will state in the determination who is liable to pay the fees.

Initially one or both parties will be required to pay the Adjudicators fees for the purposes of release of the determination as it is the policy at ASC that no determination is released until the adjudicator's fees have been paid. Once the determination is released, the party who is liable will have 5 business days to reimburse the party who has paid the fees for the purposes of releasing the determination.

Is the claimant able to suspend work?

make a deter Division 3, section 27 deals with the claimant's right to suspend work. A claimant may suspend work under the construction contract if at least 2 business days have passed since the claimant has provided the respondent with notice of intention to suspend work under section 15, 16 or 24.

If assistance or further information is required please contact us on 1300 722 624.