Payment Claims under the Building and Construction Industry Security for payment Act 1999 (NSW) and the Building and Construction Industry Payments Act 2004 (Qld)
The Building and Construction Industry Security for Payment Act 1999 (NSW) and its Queensland equivalent, the Building and Construction Industry Payments Act 2004 (“the Acts”) provide mechanisms for building contractors to recover monies owed to them for building and construction work.
The process under the Acts are as follows:
- A payment claim in accordance with the relevant act is sent by the claimant to the respondents address. The payment claim form must be precise as to the contract and works it relates to and must specifically state “This is payment claim under the Building and Construction Industry Security for payment Act 1999 (NSW)” or “This is a payment claim under the Building and Construction Industry Payments Act 2004 (Qld)”.
- If the respondent chooses to dispute the amount of the payment claim they must, within 10 business days after the payment claim has been served, serve you with a payment schedule pursuant to the relevant act. The payment schedule must outline the reasons why the amount of the payment claim is disputed and the amount the respondent proposes to pay (if any).
- If the respondent provides a payment schedule, the parties must then apply for adjudication of the dispute. An adjudicator will determine the amount payable.
- Once an amount has been determined by the adjudicator the decision of the adjudicator can be filed as a judgment in the relevant court.
- If the respondent does not respond with a payment schedule within 10 business days, the respondent becomes liable to pay the entire amount claimed. The amount then becomes a statutory debt.
Once the amount in the payment claim becomes a statutory debt there are two effective ways in which you can recover the amount owing:
- Issue proceedings in the relevant court;
- Issue a Statutory Demand on the Company.
It is important that the payment claim is correct in order to invoke this procedure. There are many other issues to consider during the process, such as whether the contractor you are claiming from is trading insolvent.
If you have done some work as a contractor, and have not been paid we can provide you with practical advice as to the best way forward in your particular circumstance.
By Kelli Edwards – Senior Commercial Litigation Lawyer