What can I claim for under the Security Of Payment Act?

You can make a claim on the respondent for:

• construction work you have done
• construction material or plant you have provided
• consulting services you have provided
• interest on overdue progress payments
• your losses and additional expenses due to work being deleted from your contract while you suspended work under the protection of the Act
• cash security and retention monies, and
• at the end of the contract, a claim under the Act can be made for the final payment

However, claims under the Act are claims for the interim payments, pending the resolution of your final entitlement under the contract. In separate proceedings, initiated by the respondent, it may be decided that amounts recovered by way of progress payments under the Act are more or less than the final entitlement and you may end up having to refund money, or being paid extra.

In cases where you are inclined to pursue a claim through expert determination, arbitration or litigation, it will still be worthwhile to pursue a payment claim under the Act before, or in parallel, with this other proceeding. This may help you receive an interim payment under the Act whilst you are waiting for the final determination of the other proceeding.

Does the Security Of Payment Act apply to homeowners?

The Act does not apply to contracts with homeowners who live in, or intend to live in, the dwelling where the work is being carried out. These contracts remain controlled by the Home Building Act, 1989. For inquiries about the Home Building Act contact the Home Building Service of the Office of Fair Trading.

The Act does, though, cover all work, materials and plant supplied by subcontractors, consultants and suppliers to contractors who have contracts with such homeowners, and residential work involving investment properties, landlords, strata title bodies corporate, developers, builders, contractors, subcontractors, consultants and suppliers.

Can I resubmit a claim?

Only one claim can be made under the Act for each reference date. The reference date is either the date stated in the contract for making claims or, if there is no date, it is the last day of each month.

However, if you have already made a payment claim but not under the Act, you are still entitled to make a claim under the Act for the same reference date. There may not have been trust in the business relationship that led you to not use the Act, but when you have signs you may not be paid you can resort to using the Act to secure payment.

Moneys not paid in respect of a previous claim can be included in the next payment claim.

Usually, claims under the Act cannot be made more than one year after the work was last carried out or the goods or services were last supplied.