Building and Construction Payment Claim FAQ
This page provides further information on how to make a payment claim under the Building and Construction Industry Security of Payment Act 2009 (the Act).
Who can make claims under the Act?
Those who can make a claim under the Act in relation to the construction work include:
- Suppliers of materials for construction work
- Suppliers of plant and equipment (whether supplied by sale, hire or otherwise) for use in connection with construction work.
- Service providers providing services related to construction work such as Labour, Architectural, Design, Surveying, Engineering, Interior or exterior decoration, Landscaping, Contract management, Consultancy and Project management.
Payments can be claimed under the Act, even if the contract:
- is not written
- does not provide for progress payments
- has only a single payment to be made when the work is completed
- contains a 'pay when paid' clause
How do I make a claim?
Your claim must:
- be made at the time stated in your contract or, if there is no time stated, on or after the last day of the month.
- be in writing and addressed to the respondent.
- describe the construction work, related goods or related services for which you are claiming.
- state the amount of your claim.
- include the words "This is a payment claim made under the Building and Construction Industry Security of Payment Act 2009", or a similar statement with that meaning.
- refer to work done in the past 6 months only or the date determined by or in accordance with the terms of the construction contract.
The claim may also include attachments containing:
- statements detailing the extent and quality of the work completed
- completion certificates
- delivery dockets
- photographs, and
- other applicable contract document requirements.
To make a claim you must:
- Establish the reference date for making your claim. 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.
- Calculate the amount you are entitled to be paid in respect of the reference date.
- Make a written payment claim on or after each reference date and serve it on the party liable to make payment (the respondent). See sample payment claim here.
- Serve the claim by delivering, posting or faxing it to the respondent. The contract may provide for other methods of service, and
- Record the date of service (the date that the respondent receives the claim).
What can I claim for?
You can make a claim on the respondent for:
- construction work you have done
- construction materials or plant you have provided
- services such as project management, contract management or consultancy that you have provided.
- interest on overdue progress payments
- 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 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 were more or less than the final entitlement. You may be required to refund money, or be entitled to be paid extra.
If you are inclined to pursue a claim through expert determination, arbitration or litigation, it may 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 Act apply to domestic building work?
The Act does not apply to domestic building work contracts with homeowners who live in, or intend to live in the premises where the work is being carried out. So if you have a construction contract for domestic building work of any kind and the person with whom you have the contract lives in or intends to live in the premises, you can't claim payments from that person under the Act.
However, if you then subcontract some parts of the work out, the sub contractors can claim payments from you under the Act.
Similarly, if you are a sub-contractor, you can make a claim against the non-owner builder.
Can employees claim unpaid wages under the Act?
No. Section 7 of the Act excludes employees. If you are working as an Employee doing any kind of construction work, you can't claim payments under the Act.
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 lodged a payment claim and it hasn't been paid, you can include the unpaid amount in your next payment claim.
Claims under the Act cannot be made more than 6 months (or the period allowed in the contract) after the work was last carried out or the goods or services were last supplied.
When should I receive payment?
If the contract provides a date or period for payment of claims, then you are entitled to be paid by then. If the contract does not provide due dates for payment, then you are entitled to be paid 15 business days after you serve the payment claim on the respondent. An adjudicator can determine the rate of interest payable on any such amount.
A "business day" under the Act is any day other than a Saturday, Sunday, public holiday or 27, 28, 29, 30 or 31 December or any other day on which there is a statewide shut-down of the operation of the building and construction industry.
How long do I have to wait for a response?
If the respondent is not willing to pay all that you have claimed, then they have a maximum of 15 business days after you have submitted your claim to give you a payment schedule. The payment schedule must be a written statement indicating the amount that the respondent is willing to pay and the reasons for withholding any part of your claim.
If the respondent fails to provide you with a payment schedule before the end of the given time under the Act, then the respondent is liable to pay the whole amount of the payment claim.
What do I do if I get no response?
If you do not receive a payment schedule from the respondent or receive no payment, by the 15th business day after you have issued a payment claim, you then have the option of:
- taking action in court or
- using the adjudication process to recover unpaid monies owed to you.
If you choose to use the adjudication process:
- You must notify the respondent of your intention to apply for adjudication in writing within 20 business days (i.e., within 35 business days of issuing the payment claim). The respondent has an opportunity to provide a payment schedule to you within 5 business days after receiving your notice.
- If no response is received, you may then make an application for adjudication.
- You can also suspend the construction work or the supply of related goods and services, after serving at least 2 business days notice to the respondent.
What can I do if I disagree with a payment schedule?
If you receive a payment schedule that you disagree with, you may apply for adjudication within 15 business days of receiving the schedule.
For assistance, call the Office of the Small Business Commissioner on Toll Free 1800 072 722 or 08 8303 2026 or e-mail email@example.com.