What do i do when i get a payment claim sent to me under the security of payments act?

About US

Payment Security Solutions are experienced consultants in regard to ‘The Building and Construction industry Security of Payment Act 1999′. Specialising in the preparation of, Adjudication Applications, Payment Claims, Contract Management and enforcement under the NSW, QLD, SA, TAS & WA Security of Payments Act.Both the ‘The Building and Construction Industry Security of Payment Act 1999’, ‘Building and Construction Industry Act 2004’(QLD) and subsequent Acts, have been specifically designed to quickly settle disputes over progress payments, final payments and retentions in the building and construction industry.

The Act creates a statutory right to receive payment for all parties that contract to carry out construction work.

Payment Security Solutions are Australia’s leading Building and Construction Security of Payment Act consultancy service with the highest rate of success for our clients.

Payment Security Solutions specialise in:

• Advice to clients as their Statutory Rights to receive payment
• Adjudication Application preparation, filing and service
• Invoice assessment
• Payment Claim preparation and service
• Payment Schedule review and evaluation
• Enforcement
• Seminars and Training regarding the Act

Update from previous blog

10 day defined

Posted by specificent •   Wednesday, 2009-October-28

Edit message | Delete message | Ban user

Is 10 days defined as including the day of service of the payment claim? This would mean, barring public holidays, a payment claim served on the Monday would have to be replied to by the respondant by the Friday. If they fail to do this, and are even 1 day late, a S21.2 Notice would need to be served after due payment date to comply with the Act. This is my opinion not a fact. Comments?

1 comments

Security of payments Round up

Posted by Payment Security Solutions •   Wednesday, 2009-September-09

Edit message | Delete message | Ban user

Here is an interesting article about the changes and differences between the Building and construction security of payments acts across Australia Click here

No comments

Western Australian Construction Contracts Act 2004

Posted by Payment Security Solutions •   Friday, 2009-August-28

Edit message | Delete message | Ban user

Adjudication – A comparison with the NSW The WA Act replicates the traditional process of arbitration and, as a consequence, suffers from the same limitations as arbitration. It was to get away from arbitration that in the Building and Construction Industry Security of Payment Act 1999 NSW adopted a unique adjudication scheme. As a consequence, adjudication in WA is a slower, more cumbersome and costly process than in NSW. Since it replicates adjudication, lawyers unfamiliar with adjudication are more comfortable the WA scheme than a novel scheme. It even took the courts in NSW some time to come to grips with the novel scheme but now it is well accepted and used regularly. For example, in 2007 there were 670 adjudications in NSW compared to 28 in WA. In WA, as with arbitration and litigation, a claimant seeking adjudication must wait till the time for payment has passed, and the claimant has not been paid, before the claimant can initiate proceedings. On the other hand, NSW gives the claimant the right to initiate proceedings on the 11th business day after making the payment claim. The claimant does not have to wait till the due date for payment. If the claimant is not paid on the due date for payment, the NSW claimant can immediately obtain a judgment for the adjudicated amount by simply filing an adjudication certificate. The following table illustrates the difference in timing. It assumes that the period for payment in the contract is 42 days. In NSW the claimant will usually have an adjudication determination before the claimant in WA can even commence an adjudication. • In NSW the respondent [called the principal in WA] must, within 10 business days after being served with a payment claim under the Act, provide in writing to the claimant all the respondent’s reasons for withholding payment. In the adjudication the respondent cannot raise new reasons later. In WA the respondent has 14 days [until Day 57 in the above example] after service upon the respondent of the adjudication application in which to provide a defence to the claim. • In WA an adjudication is commenced by statement of claim [called an ‘application for adjudication’] which is, in effect, the way arbitration or litigation is commenced, and the respondent lodges a defence, called an ‘adjudication response’. In NSW, the issues are fixed before the adjudication commences. Consequently, in the adjudication application, the claimant has only to address those reasons for withholding payment that the respondent has previously provided in the payment schedule. This makes the claimant’s task much easier and speeds up the adjudication process. • In WA a claimant cannot commence an adjudication unless the claimant pays security for the adjudicator’s fees. In NSW a claimant can commence an adjudication without paying anything and adjudicators are not entitled to security for their fees. • In NSW it is rare that the adjudicator has to seek further information from the parties and the determination is usually on the written submissions in the adjudication application and the adjudication response. Conferences are extremely rare. In WA, because the adjudication process is not confined to the reasons contained in the payment schedule, the adjudicator will usually, in the interests of natural justice, have to give the claimant an opportunity to reply to the adjudication response. This will often delay the process. • In NSW, if the adjudicator does not make a determination of the payment claim within 10 business days after being appointed, or such longer period as both parties agree, the adjudicator is not entitled to any payment. In WA, if the matter is too complex or the adjudicator does not have time to determine it, the adjudicator can dismiss the adjudication application without making a determination and the claimant must still pay. • In NSW, the claimant can suspend construction work if the respondent does not provide a payment schedule within 10 business days [by Day 15] or fails to pay the amount which the respondent agreed to pay in the payment schedule [ie. by Day 42 in the above example]. In WA, the claimant cannot suspend work until after the adjudicator makes a determination [Day 71 in the above example] and then the respondent fails to pay the adjudicated amount. This exposes the claimant in WA to much greater risk. • In NSW, to enforce payment of the adjudicated amount, the claimant simply files an adjudication certificate [issued by the authorised nominating authority] in a court of competent jurisdiction. Judgment is automatic. No leave of the court is required. In WA the claimant has to obtain leave of a court of competent jurisdiction before the claimant can obtain judgment. And first the claimant has to have the Registrar of the court certify the adjudicator’s determination. • The adjudication process in WA is not only much slower but it is also much more complicated, and consequently more expensive. It would be difficult for a claimant in WA to utilise the process without legal advice. In NSW it is usually only in the larger claims that claimant uses a lawyer. • The WA Act is designed for big business and the legal profession. The legal profession particularly likes the longer duration of an adjudication. The NSW Act is designed for all in the construction industry, big or small. It would be virtually impossible for either party in adjudication in WA to do without legal assistance. The majority of claimants and respondents in NSW are not legally represented. • The WA Act gives the ‘principal’ [the person for whom the work was carried out] the right to make a claim under the Act against the contractor [the person who carried out the work] for damages for breach of contract. It does not give the contractor the same right. The consequence is that if a contractor makes a progress claim under the WA Act, the contractor may end up having to pay the principal an amount on account of damages. This is a major deterrent to any small contractor contemplating using the Act. In NSW, on account of defective work, liquidated damages or some provision in the contract, the contractor’s entitlement may be reduced to zero but the contractor cannot be required to pay an adjudicated amount [on account of damages] to the principal.Payment Security Solutions

No comments

SA Security of payments act

Posted by Payment Security Solutions •   Tuesday, 2009-August-25

Edit message | Delete message | Ban user

South Australia Act The SA Act is likely to be the next major development in Security of Payments. The Act is very similar to that of the NSW and QLD act with some developments in the cliams for residential construction.

No comments

The TAS act is almost here

Posted by Payment Security Solutions •   Monday, 2009-August-24

Edit message | Delete message | Ban user

The objective of the Building and Construction Industry Security of Payment Bill 2009 (The Bill) is to improve payment practices in the building and construction industry to ensure progress payments are made in a timely manner. The legislation establishes an entitlement for certain persons who carry out construction work (or who supply related goods or services) to timely payment for their work and the goods and services they supply. The legislation uses an ‘adjudicator’ to ensure that speedy and efficient progress payments are made during the course of a contract without resorting to time consuming and costly arbitration or litigation. The legislation does not abolish arbitration and litigation in building disputes; in effect it postpones these remedies until the end of the contract. Final financial payments or restitution is determined at the end of the contract under the provisions of the contract. It maintains the progress payments under dispute and ‘keeps the money flowing down the contractual chain’ to parties who have a right to payment. It is intended that the Bill will assist those parties that enter into a contract after the commencement of the Bill. Those contracts that commence prior to the enactment of the Bill will not be subject to the payment practices established in the Bill.Find out more

No comments

What if the pricks go bankrupt?????

Posted by Payment Security Solutions •   Thursday, 2009-August-20

Edit message | Delete message | Ban user

from what I’ve seen in my experience, the real world has more cracks and shadows than a Kings Cross alley. What if they don’t have any liquid assets? So what if they own a multi million dollar property on the Gold Coast; fat chance of that being sold any time soon with the GFC. If it does, by the time everyone else gets paid, you’re at the bottom of the list. The pricks always find a way to screw you right out of what you’re owed. Meanwhile subbies are screaming at you for cash and you’ll never see a reasonable amount of that last hundred thousand dollar progress payment. You end up self funding the payout and losing a lot of money and reputation. The building game is a tough one. Every single job you do, you put your house, car and lifestyle on the line.

1 comments

Is a judgment debt obtained in respect of a decision of an adjudicator sufficient to issue a statutory demand as a precursor to winding up proceedings?

Posted by Payment Security Solutions •   Thursday, 2009-August-20

Edit message | Delete message | Ban user

Posted 25 July 2007 Several recent New South Wales court decisions have set aside or varied statutory demands for judgment debts obtained under the NSW Security of Payment Act, generally on the basis of some set-off or other genuine dispute, even if it has not been raised in the adjudication proceedings.
Potentially, these decisions would frustrate the primary objective of the security of payments acts by allowing a party to avoid complying with an adjudication decision. However, a decision handed down last week by the Queensland Supreme Court in Peekhrst Pty Ltd v Glenzeil Pty Ltd [2007] QSC 159 suggests that Queensland courts may be more willing to allow parties to make statutory demands in respect of judgment debts obtained under the security of payment acts. In Peekhrst, the Queensland Supreme Court held that, notwithstanding any set-off argument or other genuine dispute, it was appropriate to use the statutory demand process to enforce a judgment debt obtained under the Queensland Security of Payment Act. This was because any argument in relation to set-off or other genuine disputes could (and should) have been raised in earlier proceedings. In Peekhrst, the principal had not exercised its rights under the Queensland Security of Payment Act to apply to set aside the judgment, nor had it, prior to these proceedings, applied for judicial review of the adjudicator’s decision. The court’s willingness to allow parties to make statutory demands in respect of judgment debts obtained under the security of payment regimes is important because, unfortunately, the bleak reality is that there will always be some debtors that simply refuse to pay. It might be the case that a security of payment decision, coupled with a statutory demand (and the associated threat of winding the company up) will be enough to encourage payment, which is what the security of payment regimes are designed to achieve. Minter Ellison Visit Payment Security Solutions for more details.

No comments

Australia’s Building and Construction Security of Payment Act

The object of the NSW Government’s Building and Construction Industry Security of Payment Act 1999 No 46 (and the respective and similar Queensland Act) is to ensure that any person who carries out construction work or provides goods and services under a construction contract is entitled to make progress Payment Claims and receive payment every month, even where the contract has no provision for progress payments. The Act also assists in obtaining final payment and release of retention money. The Security of Payment Act is created to allow the supplier of goods and services to be paid in good time for the works done as per the agreement or contract. Definitions Adjudicator in relation to an adjudication application, means the person appointed in accordance with this Act to determine the application. Authorised Nominating Authority means a person authorised by the minister under Section 28 to nominate persons to determine adjudication applications. Claimant means a person by whom a payment claim is served under Section 13. Construction Contract means a contract or other arrangement under which one party undertakes to carry out construction work, or to supply related goods or services, for another party. Respondent means a person on whom a payment claim is served under Section 13. Scheduled Amount means the amount of a progress, final or retention payment that is proposed to be made under a payment schedule, as referred to in Section 14. Payment Security Solutions

Hello world!

Welcome to WordPress.com. This is your first post. Edit or delete it and start blogging!