Comparing Australia’s Security Payment Laws

08 July 2024

Security of payment laws across the country aim to ensure that contractors, subcontractors, consultants and suppliers who are carrying out construction work or supplying related goods and services under a construction contract are paid fairly and in a timely manner.

However, there are important differences in the procedural steps, requirements and timeframes that apply in each jurisdiction. We have summarised these in the table below.

Please note the table is accurate as at June 2024. ‘BD’ refers to Business Day or Working Day as defined in the relevant Act. The table is a summary only. Please read the legislation in place for your relevant State or Territory for a full understanding on how the security of payment regime works.

Item
ACT
NSW
NT
QLD
SA
TAS
VIC
WA
ActBuilding and Construction Industry (Security of Payment) Act 2009 (ACT)Building and Construction Industry Security of Payment Act 1999 (NSW)Construction Contracts (Security of Payments) Act 2004 (NT)Building Industry Fairness (Security of Payment) Act 2017 (Qld)Building and Construction Industry Security of Payment Act 2009 (SA)Building and Construction Industry Security of Payment Act 2009 (Tas)Building and Construction Industry Security of Payment Act 2002 (Vic)Building and Construction Industry (Security of Payment) Act 2021 (WA)
Time for payment after receipt of payment claim under the Act15 BDs (head contract) or 20 BDs (subcontract) or an earlier time if provided under the contract
s 13(1)
15 BDs (head contract) or 20 BDs (subcontract) or an earlier time if provided under the contract
s 11(1A)
Time provided under the contract. But terms allowing for payment more than 30 BDs, to be read as payment within 30 BDs. If contract is silent, then 10 BDs (undisputed
amount) * or, if not disputed, 20 BDs (whole amount)**

*If a notice of dispute is provided **If no notice of dispute is provided
s13, s 19; Sch 1, implied provision 6(2)
Time provided under the contract which must be 15 BDs or less (head contract) or 25 BDs or less (subcontract)* of if none provided, 10 BDs
s 73(1)
*Ss 67W and 67U of the QBBC Act
Time provided under the contract which must be 15 BDs or less (head contract) or 25 BDs or less (subcontract)* of if none provided, 10 BDs
s 73(1)
*Ss 67W and 67U of the QBBC Act
Time provided under the contract or if none provided, or 20 BDs for certain residential work otherwise 10 BDs
ss 15(1) and (2)
Time provided under the contract or if none provided,10 BDs
s 12(1)
20 BDs (head contract), 25 BDs (subcontract) or 10 BDs (for home building work)* or an earlier time if provided under the contract
s 20(1),
*s 20(3)
Time for Payment ClaimOn or after the last day of each month or an earlier date if provided under the contract
s 15(4)
On or after the last day of each month or an earlier date if provided under the contract
ss 13(1A)-(1B)
As per contract. If contract is silent any time after the contractor has performed its obligations
s 18; Sch 1, implied provision 4(1)
For claims, at the times stated in the contract, or if not provided for on the last day of each month

For interim claims, within the later of 6 months after the relevant construction work was last carried out or the date determined in accordance with the contract

For final claims, within the later of the period in the contract, 28 days after the end of the last defects liability period and 6 months after completion of the construction work/ supply of related goods and services
s 75
Later of 6 months after the relevant construction work was last carried out or the date determined in accordance with the contract
s 13(4)
Later of 12 months after the relevant construction work was carried out or when building/construction-related goods were last supplied or the date determined in accordance with the contract
s 17(6)
For claims in respect of final, single or one-off payments, within the period determined by the contract or if no such period applies, within 3 months after the "reference date" under s 9(2)

For all other claims, within later of 3 months after the "reference date" under s 9(2) or the period determined in accordance with the contract
s 14(4)
On or after the last day of each month (if any) or an earlier date if provided under the contract
ss 23(2)-(3)
Time for Payment Schedule after receipt of payment claimEarlier of 10 BDs or the time required by the contract
s 16(4)(b)
Earlier of 10 BDs or the time required by the contract
s 16(1)(b)
Time under the contract. If contract is silent, 10 BDs
s 20; Sch 1, implied provision 6(2)
Earlier of 15 BDs or the time required by the contract
s 76(1)
Earlier of 15 BDs or the time required by the contract
s 14(4)
Earlier of 20 BDs (for residential structures) or 10 BDs or the time required by the contract
ss 19(2) and (3)
Earlier of 10 BDs or time required by the contract
s 15(4)
Earlier of 15 BDs or time required by the contract
s 25(1)
Time for Further Opportunity for
Payment Schedule after receipt of adjudication notice

5 BDs
s 19(2)(b)
5 BDs
s 17(2)(b)
N/AN/A5 BDs
s 17(2)(b)
5 BDs
s 21(4)(b)
2 BDs
s 18(2)(b)
5 BDs
s 28(2)(b)
Time for Adjudication Application10 BDs after claimant receives payment schedule* or 20 BDs after the due date for payment** or 10 BDs after the earlier of the end of the 5 day period in s 19(2)(b) or the day the payment schedule was received

*If a payment schedule is provided but the scheduled amount is less than the claimed amount; **If a payment schedule is provided but the respondent fails to pay the whole/part of the scheduled amount by the due date for payment; ***If no payment schedule is provided
s 19(3)
10 BDs after receiving payment schedule* or 20 BDs after due date for payment** or 10 BDs after the end of the 5 BD period of receiving adjudication notice***

*If a payment schedule is provided but the scheduled amount is less than the claimed; **If a payment schedule is provided but the respondent fails to pay the whole/part of the scheduled amount by the due date for payment; ***If no payment schedule is provided and fails to pay whole/part of claimed amount
s 17(3)
65 BDs after the dispute arises or 20 BDs after previous application is taken to be dismissed because it is not dismissed or determined within 10 BDs or the response or any extension
ss 28(1), 33(2) and 39(2)
Later of 30 BDs after due date for payment or 30 BDs after last day to give a payment schedule* or 20 BDs after due date for payment** or 30 BDs after receiving payment schedule***

*If no payment schedule is provided;
**If a payment schedule is provided but the respondent fails to pay the full amount by the due date for payment;
***If a payment schedule is provided but the scheduled amount is less than the claimed amount
s 79(2)
15 BDs after receiving payment schedule* or 20 BDs after the date for payment** or 15 BDs after the end of the 5 day period for receiving adjudication notice***

*If no payment schedule is provided; **If a payment schedule is provided but the respondent fails to pay the full amount by the due date for payment;
***If a payment schedule is provided but the scheduled amount is less than the claimed amount
s 17(3)
10 BDs after receiving the payment schedule* or 20 BDs after the due date for payment** or 10 BDs after the end of the 5 day period in s 21(4)(b)***

*If a payment schedule is provided but the scheduled amount is less than the claimed amount; **If a payment schedule is provided but the respondent fails to pay the scheduled amount by the due date for payment; ***If no payment schedule is provided
s 21(3)
10 BDs after receiving payment schedule* or 10 BDs after due date for payment** or 5 BDs from end of the 2 BD period of receiving adjudication notice

*If a payment schedule is provided but the scheduled amount is less than the claimed amount; **If a payment schedule is provided but the respondent fails to pay the whole/part of amount by the due date for payment; ***If no payment schedule is provided
s 18(3)
20 BDs after claimant first becomes entitled to make the application*

*If the respondent has not paid the claimed or scheduled amount in full on or before the due date for payment or the scheduled amount is less than the claimed amount or no payment is proposed in the payment schedule
s 28(4)
Time for Adjudication ResponseBefore the later of 7 BDs after receiving application or 5 BDs after receiving notice of adjudicator’s acceptance of application*

*Only if a payment schedule was provided (s 22(3))
s 22(1)
Later of 5 BDs after receiving application or 2 BDs after receiving notice of adjudicator's acceptance of application*

*Only if a payment schedule was provided (s 20(2A))
s 20(1)
15 BDs after service of application
s 29(1)
For standard claims (<$750k), later of 10 BDs after receiving application or 7 BDs after receiving notice of adjudicator's acceptance of application. For complex claims (>$750k) later of 15 BDs after receiving application or 12 BDs after receiving notice of adjudicator's acceptance of application. This can be extended by the adjudicator for up to a further 15 BDs
ss 83(1) and (2)
Later of 5 BDs after receiving application* or 2 BDs after receiving notice of adjudicator’s acceptance of application*

*Only if a payment schedule was provided (s 20(3))
s 20(1)
Later of 10 BDs after receipt of application or 5 BDs after receiving notice of adjudicator’s acceptance of application
s 23(2)
Later of 5 BDs after receiving application or 2 BDs after receiving notice of adjudicator's acceptance of application*

*The respondent may lodge a response only if a payment schedule was provided (s 21(2A)).
s 21(1)
10 BDs after receiving the application

*Only if a payment schedule was provided (s 34(1))
s 34(1)
Time for DeterminationEarlier of 10 BDs after receipt of response by adjudicator and the date on which the response is required to be given to adjudicator* or 10 BDs after receipt of application** or a further time agreed by the parties

*If the respondent is entitled to give a response; **If the respondent is not entitled to give a response
s 23(3)
10 BDs after the date the response is lodged* or 10 BDs after the end of the period within which the respondent is entitled to lodge a response** or the date on which notice of the adjudicator's acceptance of the application is served on both parties or a further time agreed by the parties

*If the respondent is entitled to lodge a response; **If a response is not lodged
s 21(3)
10 BDs* after the date of service of the response** or the last date on which a response is required to be served*

*Adjudicator may request an additional 5 days; **If appointed adjudicator is served with a response under s 29(1); ***Extensions with the Registrar's consent.
ss 33(1) and (3) and 34(3)(a)
For standard claims (<$750k), 10 BDs. For complex claims, 15 BDs after receipt of response by adjudicator or the last day that the response could have been given*

*Extensions subject to agreement between the parties, with an automatic 5BD extension for complex claims if an EOT is requested but refused by the parties
s 85(1)
10 BDs after the response is lodged or the last date on which the response may be lodged* or the date on which the respondent receives the application** or a further time agreed by the parties

*If a response is not lodged; **If the respondent is not entitled to lodge a response
s 21(3)
10 BDs after receipt of response by adjudicator or the date by which the respondent may lodge a response* or the date on which the adjudicator accepted the application** or
a further time agreed by the parties

*If a payment schedule is served; **If a payment schedule is not served
s 24(1)
10 BDs after the date on which acceptance by the adjudicator of the application takes effect*

*Extension of up to 5 BDs, subject to the claimant's agreement
s 22(4)
10 BDs* after the date on which the response is given** or the last date by which the response could've been given*** or the date on which the adjudicator was appointed****

*Extensions of up to 20 BDs, subject to agreement between the parties; **If the respondent provided a response; ***If the respondent did not provide a response within the time allowed; ****If the respondent isn't entitled to give a response
ss 37(2)-(3)

¹Note that all variations must be approved to be claimable under this Act. Final claims must be made within 3 months of last working on the project.

This article was written by Kate Morrow, Partner and Caitlin Grehan, Associate.

 

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