On the first day of SOPA my…
Introduction
The holiday season is meant to be a time of joy, celebration, and relaxation, but it’s also a time when unexpected events can occur. One such surprise might be the receipt of a payment claim or adjudication application in the middle of all the festive cheer. Whether you’re at home with your family or enjoying the festivities with friends, a payment claim or adjudication application can be an unwelcome interruption.
In this article, we’ll explore how the definition of a “business day” impacts your response time, the nature of payment claims and adjudication applications gifted as presents.
Business Day – what does it mean?
The term “business day” plays a crucial role when dealing with any official notices or deadlines related to an adjudication application.
Section 4 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) defines ‘Business Day’ as follows:
business day means any day other than –
- a Saturday, Sunday or public holiday, or
- 27, 28, 29, 30 or 31 December.
This means that if you receive an adjudication application during the holiday period, you may have more time than you initially think to respond. Breaking it down further:
- Public Holidays: The Christmas and New Year period includes a number of public holidays, and these days do not count as business days. This extends to Christmas Day (25 December), Boxing Day (26 December), and New Year’s Day (1 January), so these are not included in any countdown for an adjudication response.
- End-of-Year Exclusion: The definition of “business day” also excludes the five days between Christmas and New Year’s (27 December – 31 December), meaning these days won’t count towards any deadlines you might need to meet.
If you find yourself served with an adjudication application on, say, Christmas Eve (24 December), the clock for an adjudication response doesn’t begin ticking immediately, thanks to these provisions – day 1 would be 2 January.
What Should You Do if You Are Served a Payment Claim or Adjudication Application During the Holiday Period?
If you are served with an adjudication application over the holidays, here are the key steps you should follow:
- Check the deadline: Determine the precise date of receipt. Work out the date of when your response is due. The statutory period for responding may be extended due to the holiday period. Make sure to factor in non-business days and public holidays in accordance with the SOPA definition above.
- Assemble your team: Reach out to your project manager and any key individuals involved in the project. You will need input from those who worked on the project, and in some cases, they may be required to provide witness statements as evidence in your adjudication response.
- Contact lawyers: Contact Vincent Young (or your construction lawyers) if you need any assistance, we are always available.
- Prepare your adjudication response: Ensure that you respond to the adjudication application within the prescribed time frame.
Adjudication Applications and Payment Claims in Disguise
A Payment Claim as a Christmas Card
Receiving a thoughtful Christmas card is always a nice gesture, however, it’s important to carefully examine the contents to ensure it’s not a payment claim in disguise.
According to section 13(2) of SOPA, a payment claim must contain three essential elements:
13 Payment Claims
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(2) A payment claim –
(a) must identify the construction work (or related goods and services) to which the progress payment relates, and
(b) must indicate the amount of the progress payment that the claimant claims to be due (the claimed amount), and
(c) must state that it is made under this Act.
If your Christmas card contains the three elements above, then someone may have been more “naughty” than “nice” by serving you with a payment claim. Stay alert – what seems like a holiday greeting could be a legal document in disguise!
An Adjudication Application Hidden in Christmas Wrapping
Be vigilant when receiving any suspicious packages wrapped in Christmas paper around this time of year. If you’re not careful, you may open a boxed adjudication application too late and discover that your time to respond has already expired.
Key takeaway
Remember:
- Count the days of Christmas carefully;
- Read all Christmas cards and Christmas emails to determine if they constitute a payment claim; and
- Open all large parcels to ensure it’s not an adjudication application.
Be alert but not alarmed!
If you would like to discuss this article with us, please contact Brett Vincent, Principal Partner, or Barbara Farhat, Senior Paralegal on (02) 9261 5900.