A Claimant is the person who has carried out construction work or supplied related goods and services and is entitled to payment under a construction contract.  The Respondent is the person receiving the payment claim and who, under the construction contract, is liable to make payment to the Claimant.


          The steps to making and serving a payment claim


The Claimant must serve a Payment Claim (or your tax invoice, statement, progress claim, final claim) on the Respondent.  In NSW the payment claim no longer needs to contain the words 'This is a payment claim made under the Building and Construction Industry Security of Payment Act 1999 NSW' but it can be useful in alerting the Respondent of your intentions to take a dispute further.  The Payment Claim still must clearly identify the construction work or related goods and services carried out, identify the Respondent, the amount of payment which is due and any other information required as per the construction contract.  For example, the contract may require you to provide a statutory declaration with the payment claim.

LESSON:  Be sure you know the requirements under the contract before sending your payment claim.

The payment claim must be served on the reference date.  The reference date will be the time stipulated in the contract (for example the 26th day of the month) or, if there is no time stated, then the last day of the month for works or goods and services carried out up to that date.

Service of the payment claim on the Respondent can be done by way of:

  • Facsimile (ensure to keep transmission report);
  • Express post (Australia Post provides a tracking facility);
  • Registered mail (Australia Post provides a tracking facility);
  • Courier (Signature required);
  • Hand delivery (Signature required); or
  • Any other method provided under the Contract.

If you are serving the payment claim by regular post ensure you have the correct address of the Respondent as per the contract.

Also ensure you know who the Respondent is!  For example, you may think you are working for Modern Kitchens when you are really working for Modern Kitchen Installations Pty Ltd.  Refer to the NSW page Guidelines.

The Respondent has 10 business days to provide a Payment Schedule after receipt of the payment claim.  A payment schedule is a document in response to the payment claim.  The payment schedule must identify the payment claim, must indicate the amount of payment (if any) that the Respondent proposes to make.  If the amount of payment is less than the claimed amount the Respondent must provide reasons for withholding payment.  In these circumstances if the Claimant does not agree with the payment schedule the Claimant is entitled to make an adjudication application.  The adjudication application must be lodged within 10 business days after receipt of the payment schedule.  Remember, a copy of the adjudication application must be served on the Respondent.

If the Respondent does not serve a payment schedule within the 10 business days after receipt of the payment claim, the Respondent becomes liable to pay the claimed amount on the due date for payment.  The due date for payment will be that as stated under the contract, but if the contract is silent or makes no express provision of the due date for payment then the due date will be 10 business days after a payment claim is made (essentially the same time as when the payment schedule is due to be served).

If the Respondent does not pay all or any part of the claimed amount on the due date for payment then the Claimant may recover the unpaid portion as a debt due in any court of competent jurisdiction or make an adjudication application.

Prior to the making of an adjudication application, the Claimant must first notify the Respondent of it's intention to apply for adjudication.  In this circumstance the Claimant must notify it's intention within 20 business days immediately following the due date for payment that the Claimant intends to apply for adjuidcation and provide the Respondent with an opportunity to provide a payment schedule within 5 business days, this is referred to as a S17(2) Notice.

If the Respondent does or does not provide a payment schedule within 5 business days after receipt of the intention notice, the Claimant has 10 business days at the END of the 5 day period to lodge an NSW Adjudication Application.