Gold Coast Building Lawyers

Under the current legislation, a payment claim is not required to state that it is made under the Act.

A valid payment claim must:

• Identify the work to which it relates
• State the amount claimed
• Request payment of that amount

A payment schedule must be served within 15 business days of receiving a payment claim, unless a shorter period is specified in the contract.

If a payment schedule is not served within that time, the full amount of the claim becomes due and payable. The subcontractor may recover that amount through adjudication or court proceedings, and the contractor cannot raise a substantive defence.

There have also been changes to the adjudication process. A subcontractor now has 30 business days to lodge an adjudication application.

A contractor cannot raise new reasons in an adjudication response unless those reasons were included in the payment schedule. Failure to provide a payment schedule may also constitute an offence. The only exception is where the contractor pays the full claimed amount by the due date.

The Act also introduces a reference date following termination of a construction contract where one is not already provided. This allows a subcontractor to make a payment claim for work carried out up to the date of termination.

Payment claims made on or after 17 December 2018 are governed by the Building Industry Fairness Act, even if the construction contract was entered into before that date.

Key points for subcontractors include:

• A payment claim does not need to state that it is made under the Act
• A payment schedule must be issued in response to a payment claim
• Payment schedules must be served within 15 business days unless the contract specifies a shorter period
• If no payment schedule is received, the subcontractor may proceed to adjudication or commence court proceedings after issuing a warning notice
• If a payment schedule is served, any adjudication application must be filed within 30 business days
• A contractor cannot raise new reasons in an adjudication response if they were not included in the payment schedule
• A reference date may arise on termination, allowing a further payment claim to be made

These provisions are designed to assist subcontractors to recover amounts owed in a timely and cost-effective way.