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Building and Construction Industry Security of Payment Act Overview

The main aspects of the Act are outlined below. This is a brief summary only and full details of the Act are available at www.legislation.sa.gov.au. For further information about the Security of Payment, click here.

1. Entitlement to Progress Payment
The Building and Construction Industry Security of Payment Act (the Act) entitles a person who does building and construction work, or supplies goods or services for building and construction work, to recover progress payments for work done and goods and services supplied.

A progress payment becomes due and payable on the date nominated in the construction contract or, if not clear, the last day of the month in which the construction work was first carried out (or the related goods and services were first supplied).

2. Payment Claim
A person who does building and 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 claim is made under the Act.

For more information on making a payment claim see Making a claim page.

3. Payment Schedule
A person on whom a payment claim is served (the respondent) may reply to the claim by providing a payment schedule to the claimant. A payment schedule must identify the payment claim to which it relates and must include the amount of the payment, if any, which the respondent proposes to make (the scheduled amount). If the scheduled amount is less than the claimed amount, 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 becomes payable and an application can be made to have the claimed amount become a judgement debt.

4. Decision by Claimant
The claimant gets to choose whether to accept the amount the respondent proposes to pay, and the respondent's reasons for this, or seek to have the matter adjudicated.

5. Adjudication Application
An application for adjudication must:

• Be in writing.
• Be made to an authorised nominating authority (ANA). Click here for a list of ANAs.
• Be made within regulated time limits.
• Identify the payment claim and payment schedule (if any) to which it relates.
• Include relevant application fee.
• Contain such submissions as the claimant chooses to include.

6. Adjudication Response
After receiving a copy of the adjudication application the respondent has the right to expand on the reasons given in the Payment Schedule.


7. Adjudication
After the ANA has appointed the adjudicator and all relevant documentation has been received, the adjudicator will assess the information. The adjudicator may choose to hold a conference between the parties, carry out an inspection or ask for further documentation


8. Determination
The adjudicator will make a determination as expeditiously as possible and, in any case, within 10 business days after the date on which an adjudication response is lodged with the adjudicator or within any further time that the claimant and the respondent may agree.

9. Payment of the Adjudicated Amount
The respondent is required to pay an adjudicated amount:

• within 5 business days of the adjudicator's determination being served on the respondent; or
• by a date determined by the adjudicator.

10. Non-payment of Adjudicated Amount
Should the respondent fail to pay the whole or part of the adjudicated amount the claimant may:

• Request the ANA to provide an adjudication certificate which may be filed as a judgement for a debt in a court of competent jurisdiction; and
• Serve notice on the respondent of the claimant's intention to suspend carrying out construction work (or to suspend supplying goods and services) under the construction contract.

Nominating Authorities
The Minister may:

• On application, authorise the applicant to nominate adjudicators for the purposes of the Act.
• Withdraw an authorisation to nominate adjudicators.
• Limit the number of persons who may be authorised.

An authorised nominating authority must provide the Minister with such information as may be requested by the Minister in relation to the activities of the authority under the Act (including information as to the fees charged by the authority under the Act).

Resources

Fees for building work contractors

Forms for building work contractors

Publications for building work contractors

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