You can recover progress payments for building or construction work done and goods and services supplied for building or construction work. The person claiming is called the claimant.
Progress payments can be claimed 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.
A progress payment becomes due and payable:
- on the date nominated in the construction contract, or
- the last day of the month in which construction work was carried out (or the related goods and services were first supplied).
A person who does building or construction work, or supplies goods or services for building and construction work under a construction contract can ask for a progress payment by making a payment claim.
The payment claim must:
- identify the works or services to which the progress payment relates
- indicate the amount of the progress payment
- state that the payment claim is made under the Building and Construction Industry Security of Payment Act 2009. For example by using words like, "this is a claim made under the Building and Construction Industry Security of Payment Act 2009".
A person who has a payment claim served on them may reply to the claim by providing a payment schedule to the claimant. This person is called the respondent.
A payment schedule:
- must identify the payment claim to which it relates
- must include the amount of the payment, if any, that the respondent proposed to make (the scheduled amount)
- if the scheduled amount is less than the amount claimed in the payment claim, all reasons for this difference must be given.
If the respondent does not respond with a payment schedule within the required time, the whole amount claimed becomes payable and an application may be made to have the claimed amount become a judgement debt.
After the claimant receives the payment schedule they must decide whether to:
- accept what the Respondent has offered to pay and their reasons for this offer within the prescribed time, or
- to have their claim adjudicated.
If the adjudicator has determined that an amount needs to be paid by the Respondent to the Claimant, that amount must be paid within 5 business days of the date of the determination, unless the adjudicator has specified another date.
If the Respondent fails to pay the whole or part of the adjudicated amount, the Claimant may then ask the Nominating Authority to provide an adjudication certificate. This can be taken to a court registry to be enforced by the court staff as a judgement debt.
The Claimant also has the right to serve a notice on the Respondent stating that they will suspend carrying out of construction work (or supplying goods or services) under the construction contract.