COMPARISON TABLE: NSW, QLD, VIC AND WA

NEW SOUTH WALES QUEENSLAND VICTORIA WESTERN AUSTRALIA

Main local legislation Building and Construction Building Industry Fairness Building and Construction Construction Contracts Act Industry Security of Payment (Security of Payment) Act 2017 Industry Security of Payment 2004 (WA) Act 1999 (NSW) (Qld) Act 2002 (Vic)

What amounts can be Payment for “construction work” Payment for “construction work” Payment for “construction work” Amounts relating to the perfor- claimed? or the supply of related goods or the supply of related goods or the supply of related goods mance (or non-performance) or services undertaken under a or services undertaken under a or services undertaken under a by a contractor of obligations construction contract. construction contract. construction contract. Excludes under a construction contract. most variations and claims for Payment claims are either “excluded amounts”. “standard” or “complex”. Complex payment claims are claims for an amount more than $750,000 (exclusive of GST).

Do any specific exclusions In NSW, the following does not In QLD, the following does not In VIC, the following does not In WA, the following does not apply? qualify as “construction work”: qualify as “construction work”: qualify as “construction work”: qualify as “construction work”: drilling for and extracting oil or drilling for, or extracting of, oil drilling for and extracting oil or drilling for and extracting oil or natural gas; or or natural gas; or natural gas; or natural gas; or extraction of minerals, including extraction of minerals, including extraction of minerals, including constructing a shaft, pit or tunnelling, boring or construct- tunnelling, boring or construct- tunnelling, boring or construct- quarry, or drilling, for the pur- ing underground works for that ing underground works for that ing underground works for that pose of discovering or extract- purpose. purpose. purpose. ing any mineral bearing or other substance; There are also a number of “excluded amounts” that cannot fabricating or assembling plant be claimed as part of a prog- used to extract or process oil, ress payment: natural gas or any mineral bear- ing or other substance (referred non-claimable variations that to as the “mining exclusion”); are disputed (subject to the and terms of the contract); constructing watercraft (i.e., time-related costs; shipbuilding). latent condition related costs; costs for changes in regulatory requirements; damages for breach of con- tract; and amounts in relation to a claim other than under the construc- tion contract.

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Party that may make adjudi- Claimant only (i.e., party entitled Claimant only (i.e., party entitled Claimant only (i.e., party entitled Both parties up and down the cation application under the to make a payment claim). to make a payment claim). to make a payment claim). contract chain (contractor and Act principal) (i.e., the party entitled to make a payment claim and the party that receives a pay- ment claim).

Timing for service of payment By the later of: Unless payment claim is for a By the later of: Within the period determined claim (or similar) “final payment”, by the later of: under the construction contract. the period determined under the period determined under the construction contract; or the period determined under the construction contract; and If the contract does not include the construction contract; or a written provision about how 12 months after the construc- 3 months after the reference a party is to make a claim for tion work was last carried out 12 months after the construc- date applicable to the payment payment: (or related goods or services tion work was last carried out claim. were last supplied). (or related goods or services the implied provision provided were last supplied). by the Act will be applicable; and If the claim is for a “final pay- ment”, see s 75(3). the contractor will be entitled to claim a progress payment at any time after it has performed any of its obligations.

Does the payment claim need Yes. The payment claim must No. Yes. The payment claim must No. to be endorsed as a claim state that it is made under the state that it is made under the under the Act? Act. Act.

Timing for service of response By the earlier of: By the earlier of: By the earlier of: Within the period determined to payment claim (payment under the construction contract. the period determined under the period determined under the period determined under schedule or similar) the construction contract; or the construction contract; or the construction contract; and If the contract does not include a written provision about how a 10 business days after the pay- 15 business days after the pay- 10 business days after the pay- party is to respond to a pay- ment claim is served. ment claim is served. ment claim is served. ment claim: the implied provision provided by the Act will be applicable; and the responding party must serve a notice of dispute within 14 days if it disputes all or any part of the payment claim.

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Effect of not serving a valid If a payment schedule is not If a payment schedule is not If a payment schedule is not In WA, this depends on the response to a payment claim served in time, the respondent served in time, the respondent served in time, the respondent terms of the construction is liable to pay the full claimed is liable to pay the full claimed is liable to pay the full claimed contract. amount by the due date for amount by the due date for amount by the due date for If the contract does not include payment. However, a claimant payment. payment. However, a claimant a written provision about how a may not bring an adjudication may not bring an adjudication Failure to respond to a pay- party is to respond to a pay- application seeking payment application seeking payment ment claim is an offence under ment claim, the implied provi- of the same unless it provides of the same unless it provides the Qld legislation, and respon- sion provided by the Act will the respondent with a further the respondent with a further dents could face penalties apply, and a respondent will be opportunity to serve a payment opportunity to serve a payment (up to 100 penalty units) or, if liable to pay the full claimed schedule under s 17(2). schedule under s 18(2). the respondent holds a QBCC amount if it does not serve a licence, disciplinary action notice of dispute. under the Queensland Building However, even where this and Construction Commission implied provision is applicable, Act 1991 (Qld) (“QBCC Act”). it does not preclude a respon- dent from defending an adjudi- cation application despite any failure to dispute the whole or part of a payment claim.

Maximum payment terms The maximum period for a The maximum period for a No specific maximum period No specific maximum period progress payment to be pay- progress payment to be pay- applicable under the Act, applicable under the Act, able in NSW is: able in QLD is: unless the construction contract unless the construction con- does not provide a term for tract does not provide written for payments to head contrac- for a construction management when payment falls due. In that a term for when payment falls tor, 15 business days after the trade contract or subcontract, case, a progress payment will due. In that case, the implied service of a payment claim; 25 business days; and be payable within 10 business provisions will apply and a and for a commercial building con- days after the service of a pay- progress payment will be pay- for payments to a subcontrac- tract, 15 business days. ment claim. able within 28 days after the tor, 20 business days after the Contractual provisions that respondent receives a payment service of a payment claim. purport to provide for a longer claim. period are void pursuant to ss 67U and 67W of the QBCC Act.

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Timeframe for serving adjudi- The timeframe depends on the The timeframe depends on the The timeframe depends on the Within 90 business days after a cation application nature of the application: nature of the application: nature of the application: payment dispute arises. if respondent has sched- if respondent has failed to if respondent has sched- A payment dispute will arise uled an amount less than the serve a payment schedule, uled an amount less than the where a payment claim is dis- amount claimed in the payment within 30 business days after amount claimed in the payment puted in full or in part, or when claim, within 10 business days the later of the due date for claim, within 10 business days a payment is not made at the after the payment schedule is payment and the due date of after the payment schedule is time it becomes due. served; or the payment schedule; served; or if respondent has failed to if respondent has failed to if respondent has failed to pay all or part of a scheduled pay all or part of a scheduled pay all or part of a scheduled amount, within 20 business amount, within 20 business amount, within 20 business days from the due date for days from the due date for pay- days from the due date for payment. ment; or payment. if respondent has scheduled an amount less than the amount claimed, within 30 business days after the payment sched- ule is served.

Appointment of adjudicator by As soon as practicable (no set The registrar must refer an As soon as practicable (no set Within five business days after appointing authority timeframe). application to an adjudicator timeframe). service of an adjudication within four business days after application, failing which, an it is served. adjudicator will be appointed by the Building Commissioner. The adjudicator must then accept or reject the appoint- ment within four business days after the referral is made.

Timeframe for serving adjudi- By the later of: By the later of: By the later of: Within 10 business days cation response after being served with the five business days after receipt 10 business days after receipt five business days after receipt application. of the application; or of the application (15 business of the application; or days for complex claims); or two business days after receipt two business days after receipt of notice of adjudicator’s seven business days after of notice of adjudicator’s acceptance of the application. receipt of adjudicator’s accep- acceptance of the application. tance of the application (12 business days for complex claims). For complex claims, adjudicator may extend timeframe by up to 15 business days.

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Can a respondent argue new No. Limited to reasons already No. Limited to reasons already Yes. However, if new reasons Yes. reasons for non-payment in included in the payment included in the payment are included, the claimant will the adjudication response? schedule. schedule. be entitled to respond to those new reasons within two busi- ness days after being notified under s 21(2B).

Timeframe for adjudication Unless the parties consent Unless extended, within the fol- Within 10 business days after Unless the parties consent to a determination to a longer timeframe, within lowing period after the respon- the adjudicator accepts the longer timeframe, the earlier of: 10 business days after the dent lodges a response (or if application. The claimant may 10 business days after the respondent lodges a response no response is lodged, the final also agree to an extension of service of the adjudication (or if no response is lodged, the day the response was due to up to 15 additional business response; or end of the period in which the be lodged): days. response was due). if no response is served, 10 business days: standard 10 business days after the last claims; or day for service of the response. 15 business days: complex claims.

Recycled claims permitted? Yes. A claimant may include an Yes. A claimant may include an Yes. A claimant may include an Yes. A payment claim may amount in its payment claim amount in its payment claim amount in its payment claim include matters covered in a that has been the subject of a that was included in a previous that has been the subject of a previous payment claim (and previous payment claim. payment claim. previous payment claim, if the may give rise to a new “pay- amount has not been paid. ment dispute” which can be However, a claimant is unlikely However, a claimant is unlikely adjudicated). to be permitted to re-adjudi- to be permitted to re-adjudi- However, a claimant is unlikely cate a claim for payment of an cate a claim for payment of an to be permitted to re-adjudi- However, a claimant is unlikely amount that has been deter- amount that has been deter- cate a claim for payment of an to be permitted to re-adjudi- mined by a previous adjudica- mined by a previous adjudica- amount that has been deter- cate a claim for payment of an tion application. tion application. mined by a previous adjudica- amount that has been deter- tion application. mined by a previous adjudica- tion application.

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Right to suspend for A right to suspend performance A right to suspend performance A right to suspend performance A right to suspend performance non-payment of the works arises where: of the works arises where: of the works arises where: of a contractor’s obligations arises where a respondent fails a respondent has failed to a respondent has failed to a respondent has failed to to pay an amount awarded serve a payment schedule, serve a payment schedule, serve a payment schedule, under an adjudication and failed to pay all or part of and failed to pay all or part of and failed to pay all or part of determination. amount due to the claimant; amount due to the claimant; amount due to the claimant; In such circumstances, the a respondent has served a a respondent has served a a respondent has served a claimant must comply with the payment schedule, but failed to payment schedule, but failed to payment schedule, but failed to following procedure: pay all or part of the scheduled pay all or part of the scheduled pay all or part of the scheduled amount; amount; amount; give a “notice of intention” to the respondent indicating that it an adjudication determina- an adjudication determina- an adjudication determina- intends to suspend the perfor- tion has been issued, but the tion has been issued, but the tion has been issued, but the mance of its obligations; respondent has failed to pay all respondent has failed to pay all respondent has failed to pay all or part of the amount awarded or part of the amount awarded or part of the amount awarded state in the “notice of inten- in the determination. in the determination. in the determination. tion” the date on which the claimant intends to suspend In any case, the claimant must In any case, the claimant must In any case, the claimant must performance; serve a “notice of intention” serve a “notice of intention” serve a “notice of intention” indicating that it intends to sus- indicating that it intends to sus- indicating that it intends to sus- serve the notice at least three pend the works. The claimant pend the works. The claimant pend the works. The claimant business days before the date may proceed with the suspen- may proceed with the suspen- may proceed with the suspen- stated in the notice; and sion if the payment remains sion if the payment remains sion if the payment remains out- if the amount remains unpaid outstanding at least two busi- outstanding at least two busi- standing at least three business by the date stated in the notice, ness days after the service of ness days after the service of days after the service of this a claimant may then suspend this notice. this notice. notice. performance.

6 Jones Day White Paper: Security-of-Payment Legislation in Australia COMPARISON TABLE: NT, SA, ACT AND TAS

NORTHERN TERRITORY SOUTH AUSTRALIA AUSTRALIAN CAPITAL TASMANIA TERRITORY

Main local legislation Construction Contracts Building and Construction Building and Construction Building and Construction (Security of Payments) Act 2004 Industry Security of Payment Act Industry (Security of Payment) Industry Security of Payment (NT) 2009 (SA) Act 2009 (ACT) Act 2009 (Tas)

What amounts can be Amounts relating to the perfor- Payment for “construction work” Payment for “construction work” Payment for “building work or claimed? mance (or non-performance) or the supply of related goods or the supply of related goods construction work” or the sup- by a contractor of obligations or services undertaken under a or services undertaken under a ply of related goods or services under a construction contract. construction contract. construction contract. undertaken under a building or construction contract.

Do any specific exclusions In the NT, the following does In SA, the following does not In the ACT, the following does In TAS, the following does not apply? not qualify as “construction qualify as “construction work”: not qualify as “construction qualify as “building or construc- work”: work”: tion work”: drilling for and extracting oil or drilling for and extracting oil or natural gas; or drilling for and extracting oil or drilling for and extracting oil or natural gas; or natural gas; or natural gas; or extraction of minerals, including constructing a shaft, pit or tunnelling, boring or construct- extraction of minerals, including extraction of minerals, including quarry, or drilling, for the pur- ing underground works for that tunnelling, boring or construct- tunnelling, boring or construct- pose of discovering or extract- purpose. ing underground works for that ing underground works for that ing any mineral bearing or purpose. purpose. other substance; or constructing watercraft (i.e., shipbuilding).

Party that may make adjudi- Both parties up and down the Claimant only (i.e., party entitled Claimant only (i.e., party entitled Claimant only (i.e., party entitled cation application under the contract chain (contractor and to make a payment claim). to make a payment claim). to make a payment claim). Act principal) (i.e., the party entitled to make a payment claim and the party that receives a pay- ment claim).

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Timing for service of pay- Within the period determined By the later of: By the later of: By the later of: ment claim (or similar) under the construction contract. the period determined under the the period determined under the period determined under If the contract does not include construction contract; or the construction contract; or the construction contract; or a written provision about how six months after the construc- 12 months after the construc- 12 months after the building a party is to make a claim for tion work was last carried out (or tion work was last carried out or construction work was last payment: related goods or services were (or related goods or services carried out (or related goods or the implied provision provided last supplied). were last supplied). services were last supplied). by the Act will be applicable; and the contractor will be entitled to claim a progress payment at any time after it has performed any of its obligations.

Does the payment claim No. Yes. The payment claim must Yes. The payment claim must Yes. The payment claim must need to be endorsed as a state that it is made under the state that it is made under the state that it is a claim made claim under the Act? Act. Act. under the Act.

Timing for service of Within the period determined By the earlier of: By the earlier of: By the earlier of: response to payment claim under the construction contract. the period determined under the the period determined under before the end of the period (payment schedule or If the contract does not include construction contract; or the construction contract; or in which payment is required similar) a written provision about how a under the building or construc- 15 business days after the pay- 10 business days after the pay- party is to respond to a pay- tion contract; or ment claim is served. ment claim is served. ment claim: the expiry of either 10 or the implied provision provided 20 business days after the pay- by the Act will be applicable; ment claim is served (the lon- and ger period applying to certain residential projects). the responding party must serve a notice of dispute within 10 working days if it disputes all or any part of the payment claim.

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Effect of not serving a valid In the NT, this depends on If a payment schedule is not If a payment schedule is not If a payment schedule is not response to a payment claim the terms of the construction served in time, the respondent served in time, the respondent served in time, the respondent contract. is liable to pay the full claimed is liable to pay the full claimed is liable to pay the full claimed amount. However, a claimant amount. However, a claimant amount. However, a claimant If the contract does not include may not bring an adjudication may not bring an adjudication may not bring an adjudication a written provision about how a application seeking payment of application seeking payment application seeking payment party is to respond to a pay- the same unless it provides the of the same unless it provides of the same unless it provides ment claim, the implied provi- respondent with a further oppor- the respondent with a further the respondent with a further sion provided by the Act will tunity to serve a payment sched- opportunity to serve a payment opportunity to serve a payment apply, and a respondent will be ule under s 17(2). schedule under s 19(2). schedule under s 21(4). liable to pay the full claimed amount if it does not serve a notice of dispute. However, even where this implied provision is applicable, it does not preclude a respon- dent from defending an adjudi- cation application despite any failure to dispute the whole or part of a payment claim.

Maximum payment terms No specific maximum period No specific maximum period No specific maximum period No specific maximum period applicable under the Act, applicable under the Act, unless applicable under the Act, applicable under the Act, unless the construction con- the construction contract does unless the construction con- unless the construction con- tract does not provide written not provide a term for when pay- tract does not provide a term tract does not provide a term a term for when payment falls ment falls due. In that case, a for when payment falls due. In for when payment falls due. In due. In that case, the implied progress payment will be pay- that case, a progress payment that case, a progress payment provisions will apply and a able within 15 business days after will be payable within 10 busi- will be payable within 10 or progress payment will be pay- the service of a payment claim. ness days after the service of a 20 business days after the pay- able within 28 days after the payment claim. ment claim is served (the lon- respondent receives a payment ger period applying to certain claim. residential projects).

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Timeframe for serving adjudi- The timeframe depends on the The timeframe depends on the The timeframe depends on the cation application nature of the application: nature of the application: nature of the application: if respondent has scheduled an if respondent has sched- if respondent has sched- amount less than the amount uled an amount less than the uled an amount less than the claimed in the payment claim, amount claimed in the payment amount claimed in the payment within 15 business days after the claim, within 10 business days claim, within 10 business days payment schedule is served; or after the payment schedule is after the payment schedule is served; or served; or if respondent has failed to pay all or part of a scheduled amount, if respondent has failed to if respondent has failed to within 20 business days from the pay all or part of a scheduled pay all or part of a scheduled due date for payment. amount, within 20 business amount, within 20 business days from the due date for days from the due date for payment. payment.

Appointment of adjudicator Within five working days after As soon as practicable (no set As soon as practicable (no set As soon as practicable (no set by appointing authority service of an adjudication timeframe). timeframe). timeframe). application, failing which, an adjudicator will be appointed by the Registrar.

Timeframe for serving adjudi- Within 15 working days By the later of: By the later of: By the later of: cation response after being served with the five business days after receipt seven business days after 10 business days after receipt application. of the application; or receipt of the application; or of the application; or two business days after receipt five business days after receipt five business days after receipt of notice of adjudicator’s accep- of notice of adjudicator’s of notice of adjudicator’s tance of the application. acceptance of the application. acceptance of the application.

Can a respondent argue new Yes. No. Limited to reasons already No. Limited to reasons already No. Limited to reasons already reasons for non-payment in included in the payment included in the payment included in the payment the adjudication response? schedule. schedule. schedule.

Timeframe for adjudication By the earlier of: Unless the parties consent to a Unless the parties consent Unless the parties consent determination longer timeframe, within 10 busi- to a longer timeframe, within to a longer timeframe, within 10 business days after the ness days after the respondent 10 business days after the 10 business days after the service of the adjudication lodges a response (or if no respondent lodges a response respondent lodges a response response; or response is lodged, the end of (or if no response is lodged, the (or if no response is lodged, the if no response is served, the period in which the response end of the period in which the end of the period in which the 10 business days after the last was due). response was due). response was due). day for service of the response. The timeframe may be extended by the consent of the parties or the Registrar.

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Recycled claims permitted? Yes. A payment claim may Yes. A claimant may include an Yes. A claimant may include an Yes. A claimant may include an include matters covered in a amount in its payment claim that amount in its payment claim amount in its payment claim previous payment claim (and has been the subject of a previ- that has been the subject of a that has been the subject of a may give rise to a new “pay- ous payment claim. previous payment claim. previous payment claim. ment dispute” which can be However, a claimant is unlikely to However, a claimant is unlikely However, a claimant is unlikely adjudicated). be permitted to re-adjudicate a to be permitted to re-adjudi- to be permitted to re-adjudi- However, a claimant is unlikely claim for payment of an amount cate a claim for payment of an cate a claim for payment of an to be permitted to re-adjudi- that has been determined by a amount that has been deter- amount that has been deter- cate a claim for payment of an previous adjudication application. mined by a previous adjudica- mined by a previous adjudica- amount that has been deter- tion application. tion application. mined by a previous adjudica- tion application.

Right to suspend for A right to suspend performance A right to suspend performance A right to suspend performance A right to suspend performance non-payment of a contractor’s obligations of the works arises where: of the works arises where: of the works arises where: arises where a respondent fails a respondent has failed to serve a respondent has failed to a respondent has failed to to pay an amount awarded a payment schedule and failed serve a payment schedule serve a payment schedule under an adjudication to pay all or part of amount due and failed to pay all or part of and failed to pay all or part of determination. to the claimant; amount due to the claimant; amount due to the claimant; In such circumstances, the a respondent has served a a respondent has served a a respondent has served a claimant must comply with the payment schedule but failed to payment schedule but failed to payment schedule but failed to following procedure: pay all or part of the scheduled pay all or part of the scheduled pay all or part of the scheduled give a “notice of intention” to amount; amount; amount; or the respondent indicating that an adjudication determination an adjudication determina- an adjudication determina- it intends to suspend the per- has been issued, but the respon- tion has been issued, but the tion has been issued, but the formance of its obligations; dent has failed to pay all or part respondent has failed to pay all respondent has failed to pay all state in the “notice of inten- of the amount awarded in the or part of the amount awarded or part of the amount awarded tion” the date on which the determination. in the determination. in the determination. claimant intends to suspend In any case, the claimant must In any case, the claimant must In any case, the claimant must performance; serve a “notice of intention” indi- serve a “notice of intention” serve a “notice of intention” serve the notice at least three cating that it intends to suspend indicating that it intends to sus- indicating that it intends to sus- working days before the date the works. The claimant may pro- pend the works. The claimant pend the works. The claimant stated in the notice; and ceed with the suspension if the may proceed with the suspen- may proceed with the suspen- payment remains outstanding at sion if the payment remains sion if the payment remains if the amount remains unpaid least two business days after the outstanding at least two busi- outstanding at least three busi- by the date stated in the notice, service of this notice. ness days after the service of ness days after the service of a claimant may then suspend this notice. this notice. performance.

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