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Who is a respondent under the Security Of Payment Act?

You are a respondent if you:

  • are a party to a contract in which construction work or related goods or services are being provided to you in NSW
  • do not live or propose to live in the part of the premises where the construction work or related goods or services are being provided to you, and
  • are served with a payment claim under the Act.

A payment claim under the Act must have written on it “This is a payment claim made under the Building and Construction Security of Payment Act 1999 NSW”, or a statement to that effect.

 

What is a payment schedule under the Security Of Payment Act?

A payment schedule is the notice in writing, which you must serve upon a claimant if you do not intend to pay the full amount of a payment claim under the Act.

A payment schedule must:

  • be in writing and addressed to the claimant
  • identify the payment claim to which it relates
  • state the scheduled amount of payment that you propose to make (it may be ‘nil’)
  • if that amount is less that the amount claimed, state all reasons why, and
  • be posted, delivered or faxed to the claimant as allowed under the Act or the contract, so that it reaches the claimant no later than 10 business days after you received the payment claim.

The payment schedule may also include attachments containing detailed explanation of the reasons why you intend to:

  • not pay any or all of the claimed amount, and
  • withhold any or all of the claimed amount including how the valuation of the withheld amount was calculated.

Do I have to submit a payment schedule?

If you fail to serve a payment schedule within time, you are liable for the amount claimed. If the claimant sues for recovery of that amount, you cannot raise any defence based on the construction contract or raise any cross claim.

Therefore, keep a careful record of the date of receipt of the payment claim and the date when the claimant must receive your payment schedule.