NSW Adjudication

The NSW Security of Payment legislation is the Building and Construction Industry Security of Payment Act 1999 which started NSW adjudication in 2000.

The Act was extensively amended under the Building and Construction Industry Security of Payment Amendment Act 2002 which significantly influenced similar legislation in Queensland, Victoria and Singapore.

The following adjudication process checklist is provided to assist you understand some of the information that may be considered to support your Adjudication application or Adjudication Response.  Please note the amendments to the Act summarised at the bottom of this page.

1. What can be claimed?
2. The Project;
3. Pre- Adjudication processes and events;

Who are you really dealing with?
Service of documents
Reference Date (When you can claim)
Payment Claim
Payment Schedule
Due Date For Payment
Application notice (2nd Chance Notice)
2nd Chance Payment Schedule

4. Ways to Adjudication;
5. The Adjudication Application;
6. The Adjudication Response;
7. The Submissions;
8. Proformas;
9. Fees and Charges.

For more information follow these links:
1. The responsible Government Agency
2. General Information
3. The Legislation 

AMENDMENTS

Monday 28 February 2011

The NSW Government has made amendments to the Building and Construction Industry Security of Payment Act 1999 to allow subcontractors to seek to freeze payments to non-paying contractors.

These amendments commence on Monday 28 February 2011.If a subcontractor applies for adjudication under the Building and Construction Industry Security of Payment Act 1999, they will now also be able to issue a payment withholding request to a principal contractor.

As a result of that notification, the principal contractor is required to retain the amount of the claim from any money owed to the respondent (the contractor the payment claim has been made against).

View the NSW Government Circular and download the necessary forms from here.

Monday 21 April 2014

New amendments to the NSW BCISOP Act, passed by the NSW Parliament in November 2013, commenced on 21 April 2014.  The changes are:

  • introduce prompt or maximum payment terms for progress payments
  • require that payment claims made by a head contractor include a supporting statement declaring subcontractors it has engaged, have been paid what is due and payable
  • remove the requirement that a payment claim must state that it is being made under the Act unless it is related to residential work

Very Importantly to note that the default due date for payment provisions under the Act has significantly changed which will affect the timing of s17(2) second chance notices and the time to proceed to court where there is no payment schedule. The new provisions may be summarised (seek legal advice to make sure) as:

  • Contracted to the Principal – 15 business days
  • Contracted to another contractor on a non-residential project – 30 business days
  • Contracted to another contractor (who IS NOT engaged by the home owner) on a residential project – 30 business days
  • Contracted to another contractor (who IS engaged by the home owner) on a residential project – 10 business days

The amendments will apply to contracts entered into on and from 21 April 2014.  If the contract started before this date then the unamended  Act is to be followed.

 

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