Security of Payments

Miller v LMG Building Pty Ltd NSWSC 995 Introduction The case of Miller v LMG Building Pty Ltd NSWSC 995 is a reminder of the obligations of an adjudicator when making a determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act). Relevant facts On 30…

Ceerose Pty Ltd v A-Civil Aust Pty Ltd (No 2) NSWSC 401 Under section 32A of the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act), the Supreme Court has a discretionary power to set aside the whole or part of an adjudicators determination that has been…

Pursuant to section 21(4) of Building and Construction Industry Security of Payment Act 1999 No 46 (NSW)(SOPA), adjudicators have powers to request further submission from either party provided that the other party has an opportunity to reply. Adjudicators can exercise this power any time after an initial submission has been…

  What exactly is a ‘pay when paid’ provision? A ‘pay when paid’ provision is one where the release of retention under a subcontract is dependent on the operation of a clause of the head contract. Under s 12 of the Building and Construction Industry Security of Payment Act 1999…

The recent Supreme Court decision in Equa Building Services Pty Ltd v A&H Floors 2 Doors Australia Pty Ltd NSWSC 152 (Equa) has re-emphasised the importance of strict compliance with the provisions of the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act). In particular: contractors and subcontractors…

The New South Wales Supreme Court’s decision in Growthbuilt Pty Ltd v Modern Touch Marble & Granite Pty Ltd NSWSC 290 (Growthbuilt) has extremely significant implications regarding extension of time (EOT) clauses. Contractors and legal practitioners must take note of this momentous decision. Implications for contractors The key takeaway from…

To be able to access the adjudication process under the various Security of Payment schemes in Australia, claimants are required by legislation to “identify” the construction works in a payment claim for which they seek payment. The word “identify” does not arise frequently in security of payment legislation, but where…

It is tempting to respond in a Payment Schedule with the words “pending”, “insufficient information“ or  “we will not pay your claim until all works are finished”. However, these types of unsubstantiated reasons will not work. In the NSW Supreme Court of Appeal case, Joye Group Pty Ltd v Cemco…

Under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act), unless the contract provides otherwise, a payment claim may only be made within 12 months after the work to which the claim relates was last carried out (section 13(4)(b)). In EQ Constructions Pty Ltd v A-Civil Aust…

Effective from 1 March 2021, the operation of the Building and Construction Industry Security of Payment Act 1999 (NSW) has been expanded due to an amendment made to the Building and Construction Industry Security of Payment Regulation 2020 (NSW) (collectively, ‘Security of Payment Laws’). The Security of Payment Laws now…