April 2015
Making a payment claim
You can make a payment claim to receive payment
owed to you for construction work performed or goods
and services you have provided (within the last 12
months). This applies if you are a:
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head contractor
subcontractor
supplier
plant and equipment hirer
consultant.
What work can be claimed?
Construction work and services can be claimed, even if
the contract:
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is not written;
does not include progress payments; or
has only a single payment to be made when the work
is completed.
You can make a claim for:
construction work you have done
construction material or plant you have provided
consulting services you have provided
interest on overdue progress payments
your losses and additional costs due to work being
deleted from your contract while you suspended work
(see: Can I suspend work if I haven´t been paid?)
● cash security and retention money
● the final payment, at the end of a contract.
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NOTE: Only work completed in the past 12 months can
be claimed.
When can I make a payment claim?
Contracts may specify when payment claims can be
made. If no dates are stated, it is the last day of the
month.
How do I make a payment claim?
To make a payment claim you must:
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make a written claim, stating the amount due and
describing the construction work, related goods or
services which you are claiming
serve the claim on the respondent at the time
specified in the contract or on or after each reference
date in person, by post or fax (or in any other
additional way outlined in the contract)
● record the date when the respondent receives the
claim
● if you are a subcontractor and the contract is
connected with a residential construction contract,
include a statement indicating that: "This is a
payment claim made under the Building and
Construction Industry Security of Payment Act 1999
NSW".
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The claim may also include attachments, such as:
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statements detailing the extent of the work
completed
completion certificates
delivery dockets
photographs
other applicable contract document requirements.
Supporting statement
When head contractors serve a payment claim on a
principal, they must provide a Supporting Statement. In it,
the head contractor must declare that they have paid all
payments to subcontractors they have engaged for the
construction work.
The Supporting Statement must be in the form contained
in Schedule 1 of the Building and Construction Industry
Security of Payment Regulation 2008. See our Related
information to download a 'Supporting statement by head
contractor form' from our website.
IMPORTANT: Knowingly providing false or misleading
information can lead to a maximum $22,000 penalty
and/or 3 months imprisonment.
Does the Act apply to residential work?
No. The Act does not apply to contracts made directly
with home owners who live in, or intend to live in, the
dwelling where work is carried out. These are `exempt
residential construction contracts´ covered by the Home
Building Act 1989. However, the Act covers all work
April 2015
where the home owner engages a head contractor, who
then subcontracts out that work. This includes all work,
materials and plant supplied by subcontractors,
consultants and suppliers. For example, if a home owner
engages a head contractor, who then subcontracts part
of that work to a plumber, the plumber can make a
progress payment claim to the head contractor. The Act
also applies to residential work involving investment
properties, landlords, strata scheme owners
corporations, developers, builders, contractors,
subcontractors, consultants and suppliers.
Can I resubmit a claim?
Only one claim can be made for each reference date.
This is the date stated in the contract for making claims.
If there is none, it is the last day of each month. If money
has not been paid for a previous claim, this can be
included in the next claim.
When should I receive payment?
willing to pay and the reasons for not paying any part of
your claim). If they don't serve you with one in that
timeframe, they must pay the whole claim.
What if I get no response?
You can take court action or apply for adjudication to
recover money due to you if:
you have not received a payment schedule from the
respondent within 10 business days after making a
claim, and
● they do not pay you by the due date.
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To use adjudication, once the due date has passed, you
have 20 business days from that date to notify the
respondent of your intention to apply for adjudication. If
you still have not been paid or received a payment
schedule 5 business days after giving that notice, you
can lodge an application for adjudication to an Authorised
Nominating Authority (ANA).
This depends on who makes the payment claim. Unless
stated in the contract, the due date for payment is:
What if I disagree with a payment
schedule?
15 business days after the claim is made for a head
contractor, claiming from the principal
● 30 business days after the claim is made for a
subcontractor (excluding residential work)
● 10 business days after the claim is made for a
subcontractor, doing residential work.
You may apply for adjudication within 10 business days
of receiving the schedule.
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A contract may specify earlier payment due dates than
those stated above, but not later.
If you are not paid by the due date, you have a right to
claim interest at the rate specified in the contract (if any)
or at the rate set by Rule 36.7 of the Uniform Civil
Procedure Rules 2005, whichever is greater. The current
rate is published on the NSW Local Court website.
How long do I have to wait for a
response?
If the respondent is not willing to pay all the money
claimed, they have a maximum of 10 business days after
you have submitted your claim to give you a payment
schedule (a written statement of the amount they are
I agree with the payment schedule but
haven't been paid. What now?
If you have not been paid by the due date, you may apply
for adjudication within 20 business days of the due date.
Can I suspend work if I haven’t been
paid?
If you have not been paid by the due date, you can serve
on the respondent a written notice of your intention to
suspend work. This notice must state that you are giving
the notice under the Act. You may then suspend work 2
business days after the notice has been given. The
respondent cannot claim any damages against you for
suspending work. You may claim any loss you suffer as a
result of the respondent removing work from your
contract because of your suspension of work. Your right
to suspend work continues until the end of 3 business
days from when you have been paid by the respondent.
April 2015
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This fact sheet must not be relied on as
legal advice. For more information about
this topic, refer to the appropriate
legislation.
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