Security of payment - making a claim

Who can make a claim under the Act?

People who can make a claim under the Building and Construction Industry Security of Payment Act 2009 in relation to a building and construction work contract include:

  • contractors including builders and plumbers
  • sub-contractors
  • suppliers of construction materials
  • suppliers of plant and equipment for use in connection with construction work (supply can be by sale, hire, or otherwise)
  • service providers in relation to the construction work including:
    • labour
    • design, including architectural, hydraulic and engineering design
    • engineering
    • building surveying
    • land surveying
    • interior or exterior decoration
    • landscaping
    • contract or project management
    • consultancy

Progress payments can be claimed under the Act even if the contract:

  • was not written
  • did not provide for progress payments
  • provided for a single payment at the completion of the work
  • contains a "paid when paid" clause.

What can I claim for?

  • construction work you have done
  • construction materials or plant you have provided
  • services such as project or contract management, consultancy
  • interest on overdue progress payments
  • cash security and retention monies
  • a claim for final payment at the end of the contract.

Who can I make a claim against?

Contractual arrangements included within the scope of the Act include:

  • contractors against principals or developers
  • subcontractors against contractors
  • builders and other contractors against residential owners
  • subcontractors against owner builders
  • suppliers against subcontractors or contractors
  • equipment hirers against subcontractors or contractors
  • consultants against clients.

How do I make a claim under the Act?

Your claim must:

  • be made at the time stated in the contract, or if no time is stated, on the last day of the month
  • in writing
  • addressed to the Respondent
  • describe the building or construction work, or the related goods and services for which you are claiming
  • state the amount of the progress payment that is due
  • include the words: "this is a payment claim made under the Building and Construction Industry Security of Payment Act 2009" or a similar statement that conveys the meaning that it is a claim under that Act
  • refer to work done under a building or construction contract within the past 12 months or such longer period as specified by the contract.

The claim may also include attachments such as:

  • statements detailing the extent of the work completed
  • completion certificates
  • delivery dockets
  • photographs
  • other applicable contract documents.

To make a claim you must:

  • establish the reference date for your claim. The date for making claims is either stated in the contract, or if there is no date, the end of the month
  • decide how much you are entitled to be paid calculated to the reference date
  • on or after each reference date make a written payment claim and serve it on the party liable to make payment (the Respondent). The claim will usually be a Tax Invoice
  • serve the claim by sending it to the Respondent. Service can be by post, hand delivery, fax, or any other methods provided in the contract
  • record the date of service on which the Respondent receives the claim.

Can a payment claim be re-submitted if not paid?

No. Only one claim for each reference period can be made under the Building and Construction Industry Security of Payment Act 2009. Monies not paid in respect of a previous claim can be included in the next payment claim.

When can a claimant expect to be paid?

  • You are entitled to be paid by any date or period of payment provided for in the contract
  • If there is no date provided in the contract, then you are entitled to be paid 10 business days after you serve a Payment Claim on the Respondent.  This extends to 20 business days if the Respondent is a residential home owner. A 'businesss day' means any day other than Saturday, Sunday or a Statutory Public Holiday
  • If you are not paid by the due date, you have a right to interest and an adjudicator will determine the rate payable on the unpaid amount.

How long do I have to wait for a response?

If the Respondent is not willing to pay the full amount claimed, they have 10 business days to respond with their Payment Schedule. A residential home owner has 20 days to respond with their Payment Schedule. This is a written statement of what they are willing to pay, and reasons for not paying any part of the claim. If the Respondent does not serve the Claimant with a Payment Schedule by the required time, the Respondent is then liable to pay the whole amount of the Payment Claim.

What can I do if there is no response to my payment claim?

If the time for providing a Payment Schedule expires and there has been no response, the Claimant enforce their rights by:

  1. using the adjudication process in the Building and Construction Industry Security of Payment Act 2009 ; or
  2. taking the matter to court.

Using the adjudication process

  • You must notify the Respondent of your intention to proceed to adjudication, within 20 business days of the Payment Schedule being due. This means 30 days of you issuing a claim, or 40 days if the Respondent is a residential home owner. The Respondent then has 5 business days to provide a Payment Schedule after receiving your notice.
  • If no response has been received after business 5 days you may make an adjudication application to a Nominating Authority.
  • You can also suspend work or the supply of goods or services to the Respondent within 2 days of sending a notice to suspend.

What can I do about a Payment Schedule that I disagree with?

If you disagree with the Payment Schedule you may apply for adjudication within 10 business days of receiving the schedule.

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