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. 1 Jones Day White Paper: Security-of-Payment Legislation in Australia NEW SOUTH WALES QUEENSLAND VICTORIA WESTERN AUSTRALIA 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. 2 Jones Day White Paper: Security-of-Payment Legislation in Australia NEW SOUTH WALES QUEENSLAND VICTORIA WESTERN AUSTRALIA 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. 3 Jones Day White Paper: Security-of-Payment Legislation in Australia NEW SOUTH WALES QUEENSLAND VICTORIA WESTERN AUSTRALIA 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.