Application Notice (2nd Chance Notice)

In most states if a Respondent fails to serve a payment schedule and fails to pay the whole or any part of the claimed amount by the due date for payment of the claimed amount then the Claimant may make a Security of Payment adjudication application based on the Payment Claim.

However before doing so the Claimant must give the Respondent a second chance to provide a Payment Schedule by serving a notice on the Respondent.  This notice is often referred to as a:

  • s21(2) notice in QLD
  • s17(2) notice in NSW
  • s19(2) notice in ACT
  • s21(4) notice in TAS
  • s17(2) notice in SA
  • s18(2) notice in VIC

The notice is to be served on and received by the Respondent within a set number of business days after the Due Date for Payment in relation to the Payment Claim (not any invoices attached to the Payment Claim).  The time is 20 business days for all legislatures except Victoria where it is only 10 business days.

In some jurisdictions the notice must state that the Respondent has a specified number of business days from when he/she receives the notice to provide a Payment Schedule after which time the Claimant may proceed to lodge an Adjudication Application within a further specified timeframe (see note below).  In all legislatures this time frame is 5 business days  except Victoria where it is only 2 business days.

It is good practice that the notice:

  • refers to the Payment Claim, the claimed amount and when it was served on the Respondent; and
  • states that a Payment Schedule was not received within the correct time period specified in the Act; and
  • states that there is now an intention to proceed to adjudication; and
  • states that the Respondent has an additional (specifiy the number of) business days to provide a Payment Schedule.
  • attaches the Payment Claim to ensure the Respondent is aware of which Payment Claim the notice refers to.

It is also good practice to keep evidence of service such as facsimile receipt, registered post receipts and courier receipts etc so that you can demonstrate to the adjudicator when the Respondent received the document.

We have developed a proforma that covers all these points Click here to go to the Proforma Page;

Note:

Adjudication applications timeframes after a 2nd chance notice is served varies between the Acts and it is suggested you check the relevant legislation or seek guidance.  The following is provided as guidance only:

QLD, NSW and Tasmania – within 10 business days after the end of the 2nd chance period (not during the 5 business day period).

In South Australia the application has to be made within 15 business days after the end of the 2nd chance 5 business day period (not during the 5 business day period).

In Victoria the application has to be made within 5 business days after the end of the 2nd chance 2 business day period (not during the 2 business day period).

In the ACT the application has to be made within 10 business days after the earlier of:
(i)  the end of the 5-day period mentioned in subsection (2) (b); and
(ii) the day the claimant receives the payment schedule

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