09 February 2018

How to make a payment claim under security of payment in NSW

Here are a few simple things you need to do if you want to make the most of a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW).


1. Make sure you have a construction contract that is covered by the Act

The Act only applies to contracts (whether written or not) for construction work carried out or for related goods or services supplied in New South Wales.

Certain types of building contracts are excluded. These include:

  • contracts for residential building work where a party to the contract proposes to, or already lives in, the premises; and
  • construction work or related goods or services carried out or supplied more than 12 months ago.

You will not have any rights under the Act without a relevant construction contract.

2. Check there is an available reference date

The Act gives contractors the right to claim progress payments on and from 'reference dates'. Without a reference date, a payment claim under the Act cannot be made.

Your contract will identify when reference dates occur. Usually this will be once per month, and typically towards the end (or on the last day) of the month.

If the contract does not identify a reference date, the reference date will be the last day of the month in which the construction work was first carried out or the goods or services were supplied.

The courts have found that reference dates will cease to accrue if the contract is terminated (see the Southern Han case). Usually, and depending on the terms of the contract, a payment claim made after termination of a contract will therefore be invalid.

Only one payment claim can be made in respect of each reerence date. This can be a critical consideration if you only have one reference date left (for example, practical completion has occurred and the contract allows only one further claim to be made).

 

3. Serve the claim at the right time

A claim sent before the reference date will not be effective (see the Regal Consulting case).

A payment claim must be made within 12 months after the construction work or the goods or services to which the payment claim relates were last carried out or supplied. A contract may provide for a period longer than 12 months but it cannot seek to reduce the 12 month period.

 

4. Address the claim to the right person

A payment claim must be served on the person who, under the construction contract, is or may be liable to make the payment.

For example, you cannot serve your claim on a related entity of the entity (or person) with whom you entered the contract.

In a practical sense, you may have difficulty obtaining judgment or enforcing a determination unless the respondent's details on your claim match those in your contract.

The courts have found that service of a payment claim on a superintendent given authority to receive payment claims on behalf of a principal may constitute valid service under the Act (see the Consolidated Quality Projects case). Whether this is true for your contract will depend on the terms of your contract and how the contract has been administered.

The courts have also found that a payment claim directing payment to a third party debt factor is an invalid payment claim for the purposes of the Act.

5. Clearly identify the construction work to which the claim relates

The payment claim should contain enough detail and information so that the respondent is aware of the issues in dispute. In Multiplex v Luikens, the court stated:

A payment claim and a payment schedule should not … be required to be as precise and as particularised as a pleading in the Supreme Court.  Nevertheless, precision and particularity must be required to a degree reasonably sufficient to apprise the parties of the real issues in the dispute.

Make sure your claim contains sufficient detail to enable the recipient to understand, with a reasonable degree of precision, what you are claiming for and how the amount claimed has been calculated.

6. If you are a head contractor, include a correctly completed Supporting Statement

A payment claim without a supporting statement will not be a valid payment claim for the purposes of the Act (see the Kitchen XChange case).

A supporting statement is a declaration to the effect that all subcontractors have been paid all amounts due and payable.

You can download an example of the Supporting Statement here.

7. Serve the claim properly

The time for the recipient to respond to your claim will not start until the claim has been served properly.

The safest way to serve the document is by hand (which can be done through a process server), but this will often be impractical.

The problem is that sometimes service by other means may not be effective.

For example, in a Queensland case (Conveyor & General Engineering v Basetec Services), service of documents by Dropbox was found to be ineffective as it was not contemplated by the contract. 

Email can be effective, subject to the terms of the contract. If your contract expressly prohibits email service of payment claims, this may not amount to valid service. If you are going to use email and it is not prohibited, make sure you obtain a delivery and (if possible) read receipt.

Sending a cover letter with the details of the claim on a USB key is not likely to be effective (see the Parkview case).

In all instances, check the contract and section 31 of the Act, as they will explain how you should proceed.

If you are sending the documents to a physical address, check the contract and, if necessary, conduct an ASIC search to make sure you have the correct address for your desired recipient.

8. Keep evidence of service

Finally, make sure you keep written evidence of service. If you are serving the claim by email, this means retaining the email and (ideally) obtaining delivery and read receipts.

If you are serving by courier, this means a delivery receipt signed by the recipient and any other records the courier may be able to provide.

Security of Payment NSW

About the Author

Bridgit Masson | Lawyer

Bridgit is a commercial lawyer whose practice is focused on transactional matters in the construction and technology space.
bridgit.masson@turtons.com | (02) 9229 2903

About Turtons

Turtons is a commercial law firm in Sydney with specialist expertise in privately owned construction and technology businesses.

Bridgit Masson | Lawyer

Author

Bridgit Masson | Lawyer

bridgit.masson@turtons.com

Bridgit is a commercial lawyer whose practice is focused on transactional matters in the construction and technology space.
bridgit.masson@turtons.com | (02) 9229 2903
Senior construction lawyer

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