Security of Payments Act NSW

If you have carried out construction work and or supplied related goods or services on a construction project in the state of New South Wales the Security Of Payments Act NSW legislation is the law that you use for making a claim:

“Building and Construction Industry Security Of Payments Act 1999”

The Security Of Payments Act NSW New South Wales began in 1999.

The New South Wales Security Of Payments Act provides valuable debt recovery assistance for fast results at low cost.

The Object Of the  Security Of Payments Act NSW.

The Purpose of the New South Wales Security Of Payments Act NSW is to empower subcontractors, contractors, suppliers, consultants, etc etc to enable a fast, low cost debt recovery process. Prior to the New South Wales Security Of Payments Act NSW commencing debtors could delay payment indefinitely but this is no longer possible under the strict timelines that the New South Wales Security Of Payment Act imposes.

The actual legislation itself reads :

Object of Act
(1) The object of this Act is to ensure that any person who undertakes to carry out
construction work (or who undertakes to supply related goods and services) under a
construction contract is entitled to receive, and is able to recover, progress payments in
relation to the carrying out of that work and the supplying of those goods and services.
(2) The means by which this Act ensures that a person is entitled to receive a progress
payment is by granting a statutory entitlement to such a payment regardless of whether
the relevant construction contract makes provision for progress payments.
(3) The means by which this Act ensures that a person is able to recover a progress
payment is by establishing a procedure that involves:
(a) the making of a payment claim by the person claiming payment, and
(b) the provision of a payment schedule by the person by whom the payment is
payable, and
(c) the referral of any disputed claim to an adjudicator for determination, and
(d) the payment of the progress payment so determined.
(4) It is intended that this Act does not limit:
(a) any other entitlement that a claimant may have under a construction contract,
or
(b) any other remedy that a claimant may have for recovering any such other
entitlement.”

Time Frames for the New South Wales Security Of Payments Act NSW.

The process starts with the “Reference Date“. This is the date that both parties have agreed is the date each month for making a claim. There can only be one claim for each Reference Date per month. If there is no date agreed between the parties than the Reference date will default to the last day of the month.

Once a valid Payment Claim is served the respondent (debtor) has 14 days to serve a Payment Schedule on the Claimant.

If the Respondent fails to serve a Payment Schedule on the Claimant within the time allowed the Claimant must then serve a 2nd notice on the Respondent under section 17(2) of the Act prior to applying for Adjudication. Exactly when the the second notice can be sent is determined by certain factors that are critical – call us for further clarification on this.

Note well : Your claim under the Act will fail if the time frames imposed by the Act are not met.

Once the Claimant lodges an Adjudication Application the Respondent then if they have served a Payment Schedule has the right to lodge an Adjudication Response. If the Respondent has not served a Payment Schedule they cannot defend themselves at Adjudication.

The process ends with the “Adjudicator’s Determination“. The Adjudicators decision binds the crown – this means that the Adjudicators Determination can be entered onto the court record as a judgement. Enforcement of the judgement the ensues.

Entitlement To Payment Under the New South Wales Security Of Payments Act NSW.

It is essential that you can provide sufficient evidence of the following items to persuade the Adjudicator of your entitlement to be paid under the requirements of the Act:

  • A Construction Contract within the meaning of the Act exists between the parties.
  • The work and or goods included in the Payment Claim have been completed / delivered and are defect free.
  • The work and or goods included in the Payment Claim have been charged at the agreed rates and or standard industry market rates.
  • A valid Payment Claim has been served.

Assistance To Start The Process of Making a Claim under the New South Wales Security Of Payments Act NSW

Simply send us a copy of the unpaid invoices(s) by fax 1300 732 932 or email to claims@recoup.com.au and we will respond within 24hrs.

If you would to speak to us now call 1300 RECOUP (1300 732 687)

If you would like to read the New South Wales Security Of Payments Act NSW legislation click here.

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